Tag Archives: HOA Governance

Robert E. Wolfe v. Warner Ranch Association

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Case Summary

Case ID 25F-H062-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-11-11
Administrative Law Judge Kay Abramsohn
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert E. Wolfe Counsel —
Respondent Warner Ranch Association Counsel Chandler W. Travis

Alleged Violations

Ariz. Rev. Stat. § 33-1804(D)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the March 28, 2025, 'Kick Start' meeting was not an official HOA Board meeting because no HOA business was transacted and it was arranged prior to the new management company being fully contracted. Therefore, the 48-hour advance notice requirement under A.R.S. § 33-1804(D) was not required.

Why this result: Petitioner failed to meet the burden of proving by a preponderance of the evidence that the respondent violated A.R.S. § 33-1804(D), as the meeting was concluded to be informal and not subject to the statutory notice requirements for official Board meetings.

Key Issues & Findings

HOA Board Meeting Notice Requirement

Petitioner alleged that the HOA violated A.R.S. § 33-1804(D) by holding a 'kick start' meeting on March 28, 2025, after notice was sent on March 26, 2025, failing to meet the 48-hour advance notice requirement for a Board meeting. The ALJ concluded the meeting was an informal 'meet and greet' arranged by the incoming management company and was not an official HOA Board meeting where business was transacted; thus, the statute did not apply.

Orders: Petitioner's petition in 25F-H062-REL is dismissed, and Petitioner bears the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Ariz. Rev. Stat. § 33-1804(D)
  • Ariz. Rev. Stat. § 32-2102
  • Ariz. Rev. Stat. § 32-2199
  • Ariz. Rev. Stat. § 32-2199.05
  • Ariz. Rev. Stat. § 32-2199(2)
  • Ariz. Rev. Stat. § 32-2199.01(D)
  • Ariz. Rev. Stat. § 32-2199.02
  • Ariz. Rev. Stat. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, Board Meeting Notice, Open Meeting Law, Planned Communities Statute, Management Company Transition
Additional Citations:

  • Ariz. Rev. Stat. § 33-1804(D)
  • Ariz. Rev. Stat. § 32-2102
  • Ariz. Rev. Stat. § 32-2199
  • Ariz. Rev. Stat. § 32-2199.05
  • Ariz. Rev. Stat. § 32-2199(2)
  • Ariz. Rev. Stat. § 32-2199.01(D)
  • Ariz. Rev. Stat. § 32-2199.02
  • Ariz. Rev. Stat. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119

Audio Overview

Decision Documents

25F-H062-REL Decision – 1341648.pdf

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25F-H062-REL Decision – 1341651.pdf

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25F-H062-REL Decision – 1347681.pdf

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25F-H062-REL Decision – 1355633.pdf

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25F-H062-REL Decision – 1367124.pdf

Uploaded 2026-01-23T18:26:24 (133.4 KB)





Briefing Doc – 25F-H062-REL


Briefing Document: Wolfe v. Warner Ranch Association (Case No. 25F-H062-REL)

Executive Summary

This document synthesizes the key proceedings, arguments, and final judgment in the administrative case of Robert E. Wolfe v. Warner Ranch Association, Case No. 25F-H062-REL, adjudicated by the Arizona Office of Administrative Hearings. The petitioner, Robert E. Wolfe, alleged that the Warner Ranch Association (HOA) violated Arizona’s open meeting law (A.R.S. § 33-1804(D)) by failing to provide the requisite 48-hour advance notice for a “kickstart meeting” held on March 28, 2025.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. The central finding of the decision was that the event in question was not a formal HOA Board meeting at which official business was transacted. Instead, it was characterized as an informal “meet and greet” arranged by the incoming management company, Spectrum, prior to its official contract start date. Consequently, the 48-hour notice requirement for Board meetings was deemed not applicable. The ALJ concluded that the petitioner failed to meet his burden of proof, and he was ordered to bear the $500 filing fee.

Case Overview

• Parties:

◦ Petitioner: Robert E. Wolfe, a resident and member of the Warner Ranch Association.

◦ Respondent: Warner Ranch Association (HOA), represented by board members and its management company, Spectrum Association Management.

• Case Number: 25F-H062-REL

• Adjudicating Body: Arizona Office of Administrative Hearings (OAH), following a referral from the Arizona Department of Real Estate.

• Presiding Judge: Kay A. Abramsohn, Administrative Law Judge.

• Core Dispute: Whether the “kickstart meeting” held on March 28, 2025, constituted an official Board of Directors meeting subject to the 48-hour advance notice requirement under A.R.S. § 33-1804(D).

Procedural History

The case involved several procedural adjustments regarding the hearing format and date, primarily initiated by the petitioner. Notably, several of the petitioner’s requests were made without copying the respondent, a point of order noted by the ALJ.

Action

Outcome

Aug 11, 2025

Petitioner requests a continuance, citing unavailability.

Aug 21, 2025

An order is issued continuing the hearing to October 7, 2025, to be held virtually.

Aug 27, 2025

Petitioner agrees to the date but requests the hearing be conducted in-person.

Sep 7, 2025

An order is issued confirming the October 7 date and changing the format to in-person.

Sep 30, 2025

Respondent’s counsel requests a virtual option for an unavailable witness.

Sep 30, 2025

A final order is issued establishing a hybrid hearing format (in-person and virtual) for October 7, 2025.

Petitioner’s Allegations and Arguments (Robert E. Wolfe)

The petitioner’s case was singularly focused on the alleged violation of the 48-hour notice rule for Board meetings.

• Core Claim: The HOA held a Board meeting on Friday, March 28, 2025, at 1:00 PM but provided notice less than 48 hours in advance, in direct violation of A.R.S. § 33-1804(D).

• Evidence of Insufficient Notice:

◦ Email notifications for the meeting were sent on Wednesday, March 26, 2025.

◦ Documentary evidence showed computer-generated receipt times ranging from 1:36 PM to 1:45 PM on March 26, which is less than 48 hours before the 1:00 PM meeting on March 28.

◦ The petitioner himself did not receive the initial email notice and was forwarded a copy by the HOA President, Melanie Zimmer.

• Evidence the Event was a Board Meeting:

◦ The petitioner argued the event’s structure and attendance qualified it as a formal Board meeting. The meeting notification included a formal agenda with items such as “Call to Order,” “Establishment of a Quorum,” and “Adjournment.”

◦ He contended that the meeting minutes listed Board members as present, indicating a quorum was established.

◦ In his testimony, the petitioner stated, “when you have a quorum of board of directors, it requires notice of open meeting.”

◦ He summarized his position with an analogy:

• Requested Relief:

1. Reimbursement of the $500 filing fee.

2. An order requiring that a copy of the open meeting law be given to each board member.

Respondent’s Position and Testimony (Warner Ranch Association & Spectrum)

The respondent’s defense centered on the informal nature and purpose of the meeting, arguing it did not constitute official Board business.

• Characterization of the Meeting: The event was consistently described as an “informal kickstart meeting” and a “meet and greet,” not a formal Board meeting.

• Purpose of the Meeting:

◦ The meeting was arranged by the incoming management company, Spectrum, to introduce its team to the Board and homeowners.

◦ This was deemed necessary due to severe operational issues with the previous management company, which was described as “very, very delinquent.”

• Absence of Official Business:

◦ Testimony from multiple representatives, including HOA President Melanie Zimmer and Spectrum’s Brenda Steel, asserted that no official Board business, decision-making, motions, or votes were conducted.

◦ The meeting minutes reflected discussions about the management transition, roles, and expectations, but contained no record of official Board actions.

• Context of Management Transition:

◦ The contract with Spectrum was signed prior to the “kickstart” meeting.

◦ However, Spectrum’s official management duties were not set to begin until April 1, 2025. The March 28 meeting occurred before Spectrum formally took over management.

• Acknowledgement of Procedural Issues:

◦ A Spectrum representative testified that the meeting “could have been noticed differently” and that they did not have a complete list of homeowner email addresses from the prior company.

◦ HOA Treasurer Bonnie S. acknowledged receiving her own notice late (36 minutes after the 48-hour mark) and offered an apology:

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision, issued on November 11, 2025, sided with the respondent and dismissed the petition.

• Final Order:

◦ The petitioner’s petition in case 25F-H062-REL was ordered dismissed.

◦ The petitioner, Robert E. Wolfe, was ordered to bear the $500.00 filing fee.

• Key Finding: The ALJ concluded that the March 28, 2025 “Kick Start” meeting was not an official HOA Board meeting where business was transacted.

• Legal Rationale: Because the event was not a Board meeting as defined by statute, the 48-hour advance notice requirement stipulated in A.R.S. § 33-1804(D) did not apply.

• Evidentiary Basis for Decision:

◦ The finding was supported by testimony from the HOA and Spectrum characterizing the event as an informal “meet and greet.”

◦ A review of the meeting minutes confirmed that they “do not reflect any motions, votes, or actions taken by the Board at the meeting on behalf of the HOA.”

◦ The decision noted that Spectrum had also mailed a postcard regarding the meeting to each of the 803 HOA members.

• Conclusion on Burden of Proof: The petitioner bore the burden of proving a violation by a preponderance of the evidence. The ALJ ruled that this burden was not met.


Case Participants

Petitioner Side

  • Robert E. Wolfe (petitioner)

Respondent Side

  • Melanie Zimmer (board president)
    Warner Ranch Association
    Appeared on behalf of Respondent
  • Bonnie Strike (board member)
    Warner Ranch Association
    Treasurer
  • Brenda Steel (community manager/witness)
    Spectrum Association Management
    HOA Community Manager
  • Elizabeth Wicks (legal services manager/witness)
    Spectrum Association Management
  • Diana Treantos (division president/witness)
    Spectrum Association Management
  • Chandler W. Travis (HOA attorney)
    The Travis Law Firm PLC
    Counsel for Respondent

Neutral Parties

  • Kay Abramsohn (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • dmorehouse (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Other Participants

  • Renee Malcolm (HOA member/recipient)
    Warner Ranch Association
    Referenced in testimony regarding notice delivery timing
  • Bill Carlson (HOA member/recipient)
    Warner Ranch Association
    Referenced in testimony regarding notice delivery timing (one of the Carlsons)

George Wolchko v. Victoria Manor Management & Property Owners

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Case Summary

Case ID 25F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-05-05
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $150.00

Parties & Counsel

Petitioner George Wolchko Counsel —
Respondent Victoria Manor Management & Property Owners Association Counsel Christopher Duren

Alleged Violations

A.R.S. § 33-1805
Bylaws, Article III, Section 4
CC&Rs, Section 4.04
Bylaws, Article IV, Section 1

Outcome Summary

The Petitioner prevailed on three of the four issues: Violation of AZ Law on Delivery of Community Documents (A.R.S. § 33-1805), Failure to Uphold CCRs Regarding Common Wall Repairs (Bylaws/CC&R violation), and operating with fewer than the minimum required number of board members (Bylaws violation). The Petitioner did not prevail on the issue regarding the Failure to Hold a Special HOA Meeting.

Why this result: Petitioner's request for an “emergency meeting” regarding the wall repair was deemed technically insufficient to qualify as a formal 'special meeting' petition under the Bylaws.

Key Issues & Findings

Violation of AZ Law on Delivery of Community Documents

The HOA failed to provide the Kachina Management contract within the required ten business days for examination or copies, despite numerous requests.

Orders: Respondent failed to comply with A.R.S. § 33-1805 by not making documents available for examination within ten business days of request.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • Bylaws, Article X
  • CC&Rs, Section 9.07

Failure to Hold a Special HOA Meeting

The HOA failed to hold a special meeting requested by a valid petition signed by 25% of members, concerning common wall damage.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(A)
  • Bylaws, Article III, Section 4

Failure to Uphold CCRs Regarding Common Wall Repairs

The HOA refused to repair a common wall designated as a Common Element after damage was caused by an HOA-sanctioned electrician, failing their maintenance obligation.

Orders: The Board failed to maintain a Common Element (electrical conduit/wall area) in good repair after its hired contractor caused damage, violating Bylaws and CC&R obligations.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1803(A)

Violations of HOA Elections Procedures and Community Documents (Failure to seat required number of board members)

The HOA Board violated governing documents by operating with only two members, failing to maintain the minimum required number of three directors.

Orders: Respondent violated Bylaws Article IV, Section 1 by not maintaining a Board of Directors composed of no fewer than three persons.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 5.03

Analytics Highlights

Topics: HOA governance, Document request, Board composition, Common elements maintenance, Filing fee refund, Civil penalty
Additional Citations:

  • A.R.S. § 33-1805
  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1804(A)

Audio Overview

Decision Documents

25F-H025-REL Decision – 1268559.pdf

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25F-H025-REL Decision – 1276022.pdf

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25F-H025-REL Decision – 1276027.pdf

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25F-H025-REL Decision – 1282178.pdf

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25F-H025-REL Decision – 1288973.pdf

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25F-H025-REL Decision – 1290761.pdf

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25F-H025-REL Decision – 1301417.pdf

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Briefing Doc – 25F-H025-REL


Briefing Document: Wolchko v. Victoria Manor Management & Property Owners Association

Executive Summary

This document synthesizes the key proceedings, arguments, and outcomes of the administrative case George Wolchko v. Victoria Manor Management & Property Owners Association, Case No. 25F-H025-REL, adjudicated by the Arizona Office of Administrative Hearings. The Petitioner, George Wolchko, a homeowner, filed a four-issue petition against the Respondent, his Homeowners Association (HOA), alleging violations of Arizona statutes and the community’s governing documents.

The hearing, held on April 14, 2025, resulted in a mixed but largely favorable outcome for the Petitioner. The Administrative Law Judge (ALJ) found the HOA in violation on three of the four claims:

1. Failure to Provide Documents: The HOA violated A.R.S. § 33-1805 by not making its management contract with Kachina Management available within the legally mandated ten-business-day period.

2. Failure to Repair Common Wall: The HOA violated its own Bylaws and CC&Rs by failing its duty to maintain and repair a common element (an exterior wall and electrical conduit) after its hired contractor performed improper work, leaving a hole that was not weatherproof.

3. Failure to Fill Board Vacancy: The HOA violated its Bylaws, which mandate a board of no fewer than three members, by operating with only two directors since October 2024.

The HOA prevailed on one claim, Failure to Hold a Special Meeting, as the ALJ determined the Petitioner’s request, while clear in intent, was technically deficient under the Bylaws. The final order deemed Mr. Wolchko the prevailing party on three issues, ordering the HOA to reimburse him $1,500.00 in filing fees, to comply with community documents going forward, and levying a civil penalty of $150.00 against the Association.

Case Overview

Case Number

25F-H025-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Samuel Fox

Hearing Date

April 14, 2025

Petitioner

George Wolchko

Respondent

Victoria Manor Management & Property Owners Association

Respondent’s Counsel

Christopher Duren (of Gottlieb Law, PLC)

Key Parties and Witnesses

• George Wolchko: The Petitioner, owner of a home in the Victoria Manor community since 2018 and a former board member (2018-2023). Testified on his own behalf.

• Victoria Manor Management & Property Owners Association: The Respondent, a planned community in Mesa, Arizona, consisting of eight units and seven owners.

• Joseph Kidd: A current HOA board member, serving since November 2022. Testified for the Respondent.

• Michael Mott: A current HOA board member. Was present at the hearing but did not testify.

• Kachina Management, Inc.: The HOA’s management company, contracted in April 2024.

• Chris Jones: Elected to the board in September 2024 but resigned shortly thereafter, creating the board vacancy at the heart of Claim 4.

Analysis of Claims, Evidence, and Findings

Claim 1: Violation of AZ Law on Delivery of Community Documents

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1805 and its governing documents by failing to provide a copy of the Kachina Management contract despite numerous requests beginning in May 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Made his first formal email request for the contract on May 6, 2024. He followed up on May 12 and May 26.

◦ The management company, Kachina, responded on May 29, offering an in-person review on June 3 or 4.

◦ Wolchko testified that driving 45 minutes each way was not a “reasonably available” means of access, especially when a digital copy existed and he travels internationally. He noted the CC&Rs explicitly allow for delivery by mail.

◦ After canceling an in-person appointment due to an emergency, his repeated requests for a digital or mailed copy were met with insistence on in-person review.

◦ The contract was finally produced in February 2025, nearly a year after the initial request and only after the petition was filed.

• Respondent’s Position:

◦ Argued that by offering in-person inspection at their office, they fulfilled their statutory obligation to make records “reasonably available for examination.”

◦ Emails from Kachina Management to Wolchko confirmed they had prepared the documents for his review on the dates offered. They stated Wolchko canceled the appointment and never rescheduled.

• ALJ’s Finding: Violation Found. The ALJ concluded that more than ten business days passed between the initial request on May 6, 2024, and the date the documents were made available for examination on June 3, 2024. This delay constituted a failure to comply with A.R.S. § 33-1805.

Claim 2: Failure to Hold a Special HOA Meeting

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1804(A) and its Bylaws by failing to hold a special meeting requested via a valid petition signed by 25% of the members (Wolchko and Terrance Greer).

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Submitted a formal, signed request on June 19, 2024, to hold an “emergency HOA meeting to address repairs on a community common wall.”

◦ He argued this was a valid petition for a special meeting and that the Board ignored it.

◦ The Respondent falsely claimed the meeting was held during the September annual meeting, but the annual meeting notice and minutes contained no mention of the special meeting’s purpose.

• Respondent’s Position:

◦ Argued the request was for an “emergency meeting,” which, under statute, can only be called by the Board of Directors, not by member petition.

◦ Contended there is no provision in the governing documents for 25% of members to call an emergency meeting.

◦ Noted that at the annual meeting in September, Wolchko was explicitly asked if he had any issues to discuss and he declined.

• ALJ’s Finding: No Violation. The ALJ found that although the intent was clearly to request a special meeting, the petition was technically deficient. It used the term “emergency meeting,” did not include a place for the meeting, and did not use the phrase “special meeting.” While a “mere technicality,” this was sufficient to deem the petition ineffective. The Respondent was deemed the prevailing party on this issue.

Claim 3: Failure to Uphold CCRs Regarding Common Wall Repairs

• Petitioner’s Allegation: The HOA failed its duty to repair a common wall damaged by its own electrician in February 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ In February 2024, an HOA-hired contractor, Blue State Electric, performed work on an electrical conduit on his building’s exterior wall, which the board had previously designated a “true common area” with shared 50/50 maintenance costs.

◦ The work left a hole filled with foam that was not watertight. His immediate notification on March 15, 2024, was dismissed by board member Joseph Kidd, who claimed the hole was a pre-existing condition exposed by the work and therefore not the HOA’s responsibility.

◦ After months of the board refusing to act, he investigated the box himself, discovering an HOA wire running through his wall. He stated he only touched the box to prove it was an HOA issue after being told to “deal with it myself.”

◦ He disputed the validity of an $1,867 invoice from a second contractor (Canyon State), stating it was solicited by the board to blame him for damage he did not cause.

• Respondent’s Testimony & Evidence (Kidd):

◦ The electrical box and conduit are common elements that serve four buildings.

◦ Wolchko is not a licensed Arizona electrician and had no authorization to touch the common element.

◦ Kidd testified that after Wolchko sent a video of himself pulling the box out, the board hired Canyon State to inspect it.

◦ He acknowledged offering to help Wolchko patch the stucco but denied authorizing any electrical work.

• ALJ’s Finding: Violation Found. The ALJ determined that the preponderance of evidence supported that the “Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing.” Because the wall and electrical conduit were common elements, the board had a duty to maintain them in good repair. The board “declined to correct the problem its contractor caused,” thus violating the Bylaws and CC&Rs.

Claim 4: Failure to Maintain Required Number of Board Members

• Petitioner’s Allegation: The HOA violated its Bylaws (Article IV, Section 1), which require a board of “no less than three (3) persons,” by operating with only two members.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Following the September 19, 2024 election, three members were elected: Joseph Kidd, Michael Mott, and Chris Jones.

◦ Chris Jones resigned almost immediately, leaving the board with two members.

◦ He argued that while the bylaws state a vacancy “may be filled” by the remaining directors, this grants authority, it does not waive the fundamental requirement of having at least three members.

◦ He noted that two other owners (himself and Terrance Greer), representing 25% of the HOA, were willing to serve, so the vacancy could be filled.

• Respondent’s Testimony & Evidence (Kidd):

◦ Confirmed Jones resigned by early October 2024.

◦ Stated the board reached out to other members who expressed no interest in serving.

◦ Testified that Kachina Management advised them that filling the seat was at their discretion.

◦ The Respondent’s legal argument was that the Bylaw’s use of the word “may” (“may be filled”) makes filling the vacancy optional, not mandatory.

• ALJ’s Finding: Violation Found. The ALJ was “not persuasive” by the Respondent’s argument. The decision states: “This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.” The preponderance of evidence established that the HOA violated its Bylaws by not having enough Board members.

Final Decision and Order

• Prevailing Party: George Wolchko was deemed the prevailing party on Petition Issues 1, 3, and 4. Victoria Manor was deemed the prevailing party on Issue 2.

• Reimbursement: The Respondent was ordered to pay the Petitioner $1,500.00 for filing fees within thirty days.

• Compliance: The Respondent was directed to “comply with the requirements of its Community Documents going forward.”

• Civil Penalty: A civil penalty of $150.00 was levied against the Respondent.

• Decision Date: May 5, 2025.






Study Guide – 25F-H025-REL


{ “case”: { “docket_no”: “25F-H025-REL”, “case_title”: “George Wolchko v. Victoria Manor Management & Property Owners Association”, “decision_date”: “2025-05-05”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How long does the HOA have to provide records after I request them?”, “short_answer”: “The HOA has ten business days to fulfill a request to examine or provide copies of records.”, “detailed_answer”: “Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.”, “alj_quote”: “A.R.S. § 33-1805 provides an association ‘ten business days to fulfill a request for examination’ or ‘to provide copies of the requested records.’ … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “deadlines”, “HOA obligations” ] }, { “question”: “Can homeowners call an ’emergency meeting’ regarding repairs?”, “short_answer”: “Generally, no. Homeowners should request a ‘special meeting’ instead, as ’emergency meetings’ are typically reserved for the Board.”, “detailed_answer”: “While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an ’emergency meeting’ was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request ‘special meetings’.”, “alj_quote”: “In the context of the communications about this meeting, it is clear that Petitioner was requesting a ‘special meeting’ not an ’emergency meeting,’ which can only be called by the Board.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “meetings”, “procedure”, “homeowner rights” ] }, { “question”: “What specific details must be included in a petition for a special meeting?”, “short_answer”: “The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.”, “detailed_answer”: “Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label (‘special meeting’)—can render a petition invalid, even if it has the required number of signatures.”, “alj_quote”: “The petition did not include a place for the meeting, the topic to be discussed, or the phrase ‘special meeting.’ … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.”, “legal_basis”: “Bylaws Article III, Section 4”, “topic_tags”: [ “meetings”, “petitions”, “technicalities” ] }, { “question”: “Is the HOA responsible if a contractor they hired does poor work on a common element?”, “short_answer”: “Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.”, “detailed_answer”: “If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.”, “alj_quote”: “The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.”, “legal_basis”: “Bylaws Article IV, Section 3; CC&R Section 4.05(2)”, “topic_tags”: [ “maintenance”, “common elements”, “contractors” ] }, { “question”: “Can the HOA Board operate with fewer members than the Bylaws require?”, “short_answer”: “No. If the Bylaws state a minimum number of directors, the Board must maintain that number.”, “detailed_answer”: “The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.”, “alj_quote”: “Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.”, “legal_basis”: “Bylaws Article IV, Section 1”, “topic_tags”: [ “board composition”, “bylaws”, “vacancies” ] }, { “question”: “Does a Bylaw saying a vacancy ‘may be filled’ mean the Board can choose to leave a seat empty?”, “short_answer”: “No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.”, “detailed_answer”: “HOAs cannot use the word ‘may’ in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.”, “alj_quote”: “Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “legal interpretation”, “board vacancies”, “bylaws” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.”, “detailed_answer”: “In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,500.00, to be paid directly to Petitioners within thirty (30) days of this Order.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “reimbursement”, “fees”, “penalties” ] }, { “question”: “Can the HOA be fined for these violations?”, “short_answer”: “Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.”, “detailed_answer”: “The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.”, “alj_quote”: “A Civil Penalty of $150.00 is found to be appropriate in this matter.”, “legal_basis”: “A.R.S. § 32-2199.02”, “topic_tags”: [ “fines”, “civil penalty”, “enforcement” ] } ] }






Blog Post – 25F-H025-REL


{ “case”: { “docket_no”: “25F-H025-REL”, “case_title”: “George Wolchko v. Victoria Manor Management & Property Owners Association”, “decision_date”: “2025-05-05”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How long does the HOA have to provide records after I request them?”, “short_answer”: “The HOA has ten business days to fulfill a request to examine or provide copies of records.”, “detailed_answer”: “Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.”, “alj_quote”: “A.R.S. § 33-1805 provides an association ‘ten business days to fulfill a request for examination’ or ‘to provide copies of the requested records.’ … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “deadlines”, “HOA obligations” ] }, { “question”: “Can homeowners call an ’emergency meeting’ regarding repairs?”, “short_answer”: “Generally, no. Homeowners should request a ‘special meeting’ instead, as ’emergency meetings’ are typically reserved for the Board.”, “detailed_answer”: “While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an ’emergency meeting’ was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request ‘special meetings’.”, “alj_quote”: “In the context of the communications about this meeting, it is clear that Petitioner was requesting a ‘special meeting’ not an ’emergency meeting,’ which can only be called by the Board.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “meetings”, “procedure”, “homeowner rights” ] }, { “question”: “What specific details must be included in a petition for a special meeting?”, “short_answer”: “The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.”, “detailed_answer”: “Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label (‘special meeting’)—can render a petition invalid, even if it has the required number of signatures.”, “alj_quote”: “The petition did not include a place for the meeting, the topic to be discussed, or the phrase ‘special meeting.’ … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.”, “legal_basis”: “Bylaws Article III, Section 4”, “topic_tags”: [ “meetings”, “petitions”, “technicalities” ] }, { “question”: “Is the HOA responsible if a contractor they hired does poor work on a common element?”, “short_answer”: “Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.”, “detailed_answer”: “If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.”, “alj_quote”: “The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.”, “legal_basis”: “Bylaws Article IV, Section 3; CC&R Section 4.05(2)”, “topic_tags”: [ “maintenance”, “common elements”, “contractors” ] }, { “question”: “Can the HOA Board operate with fewer members than the Bylaws require?”, “short_answer”: “No. If the Bylaws state a minimum number of directors, the Board must maintain that number.”, “detailed_answer”: “The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.”, “alj_quote”: “Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.”, “legal_basis”: “Bylaws Article IV, Section 1”, “topic_tags”: [ “board composition”, “bylaws”, “vacancies” ] }, { “question”: “Does a Bylaw saying a vacancy ‘may be filled’ mean the Board can choose to leave a seat empty?”, “short_answer”: “No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.”, “detailed_answer”: “HOAs cannot use the word ‘may’ in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.”, “alj_quote”: “Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “legal interpretation”, “board vacancies”, “bylaws” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.”, “detailed_answer”: “In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,500.00, to be paid directly to Petitioners within thirty (30) days of this Order.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “reimbursement”, “fees”, “penalties” ] }, { “question”: “Can the HOA be fined for these violations?”, “short_answer”: “Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.”, “detailed_answer”: “The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.”, “alj_quote”: “A Civil Penalty of $150.00 is found to be appropriate in this matter.”, “legal_basis”: “A.R.S. § 32-2199.02”, “topic_tags”: [ “fines”, “civil penalty”, “enforcement” ] } ] }


Case Participants

Petitioner Side

  • George Wolchko (petitioner)
  • Terrance Greer (owner/petitioner supporter)
    Signed special meeting petition

Respondent Side

  • Christopher Duren (HOA attorney)
    GOTTLIEB LAW, PLC
    Appeared as counsel for Respondent; referenced as Mr. Duran/Durham
  • Joseph Kidd (board member/witness)
    Victoria Manor Management & Property Owners Association
  • Michael Mott (board member)
    Victoria Manor Management & Property Owners Association
  • Benjamin L. Gottlieb (HOA attorney)
    GOTTLIEB LAW, PLC
  • Mark Rounsaville (HOA representative)
    Kachina Management
    Also referred to as R. Mark Rounsaville; filed written answer for Respondent
  • Chris Jones (former board member)
    Victoria Manor Management & Property Owners Association
    Elected September 2024, resigned shortly thereafter
  • Ashley Love (property manager)
    Tri City Property Management
  • Deja Rabone (property manager)
    Tri City Property Management
  • Amy (law firm staff)
    GOTTLIEB LAW, PLC
  • Joshua (law firm staff)
    GOTTLIEB LAW, PLC
  • Chris (law firm staff)
    GOTTLIEB LAW, PLC
    Distinct from Christopher Duren
  • Karen F. (law firm staff)
    GOTTLIEB LAW, PLC

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Alexis Madrid (ALJ)
    OAH

Other Participants

  • Ron Owen (former board member)
    Victoria Manor Management & Property Owners Association
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
  • L. Recchia (ADRE staff)
    Arizona Department of Real Estate
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate

George Wolchko v. Victoria Manor Management & Property Owners Association

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Case Summary

Case ID 25F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-05-05
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $150.00

Parties & Counsel

Petitioner George Wolchko Counsel —
Respondent Victoria Manor Management & Property Owners Association Counsel Christopher Duren

Alleged Violations

A.R.S. § 33-1805
Bylaws, Article III, Section 4
CC&Rs, Section 4.04
Bylaws, Article IV, Section 1

Outcome Summary

The Petitioner prevailed on three of the four issues: Violation of AZ Law on Delivery of Community Documents (A.R.S. § 33-1805), Failure to Uphold CCRs Regarding Common Wall Repairs (Bylaws/CC&R violation), and operating with fewer than the minimum required number of board members (Bylaws violation). The Petitioner did not prevail on the issue regarding the Failure to Hold a Special HOA Meeting.

Why this result: Petitioner's request for an “emergency meeting” regarding the wall repair was deemed technically insufficient to qualify as a formal 'special meeting' petition under the Bylaws.

Key Issues & Findings

Violation of AZ Law on Delivery of Community Documents

The HOA failed to provide the Kachina Management contract within the required ten business days for examination or copies, despite numerous requests.

Orders: Respondent failed to comply with A.R.S. § 33-1805 by not making documents available for examination within ten business days of request.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • Bylaws, Article X
  • CC&Rs, Section 9.07

Failure to Hold a Special HOA Meeting

The HOA failed to hold a special meeting requested by a valid petition signed by 25% of members, concerning common wall damage.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(A)
  • Bylaws, Article III, Section 4

Failure to Uphold CCRs Regarding Common Wall Repairs

The HOA refused to repair a common wall designated as a Common Element after damage was caused by an HOA-sanctioned electrician, failing their maintenance obligation.

Orders: The Board failed to maintain a Common Element (electrical conduit/wall area) in good repair after its hired contractor caused damage, violating Bylaws and CC&R obligations.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1803(A)

Violations of HOA Elections Procedures and Community Documents (Failure to seat required number of board members)

The HOA Board violated governing documents by operating with only two members, failing to maintain the minimum required number of three directors.

Orders: Respondent violated Bylaws Article IV, Section 1 by not maintaining a Board of Directors composed of no fewer than three persons.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 5.03

Analytics Highlights

Topics: HOA governance, Document request, Board composition, Common elements maintenance, Filing fee refund, Civil penalty
Additional Citations:

  • A.R.S. § 33-1805
  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1804(A)




Briefing Doc – 25F-H025-REL


Briefing Document: Wolchko v. Victoria Manor Management & Property Owners Association

Executive Summary

This document synthesizes the key proceedings, arguments, and outcomes of the administrative case George Wolchko v. Victoria Manor Management & Property Owners Association, Case No. 25F-H025-REL, adjudicated by the Arizona Office of Administrative Hearings. The Petitioner, George Wolchko, a homeowner, filed a four-issue petition against the Respondent, his Homeowners Association (HOA), alleging violations of Arizona statutes and the community’s governing documents.

The hearing, held on April 14, 2025, resulted in a mixed but largely favorable outcome for the Petitioner. The Administrative Law Judge (ALJ) found the HOA in violation on three of the four claims:

1. Failure to Provide Documents: The HOA violated A.R.S. § 33-1805 by not making its management contract with Kachina Management available within the legally mandated ten-business-day period.

2. Failure to Repair Common Wall: The HOA violated its own Bylaws and CC&Rs by failing its duty to maintain and repair a common element (an exterior wall and electrical conduit) after its hired contractor performed improper work, leaving a hole that was not weatherproof.

3. Failure to Fill Board Vacancy: The HOA violated its Bylaws, which mandate a board of no fewer than three members, by operating with only two directors since October 2024.

The HOA prevailed on one claim, Failure to Hold a Special Meeting, as the ALJ determined the Petitioner’s request, while clear in intent, was technically deficient under the Bylaws. The final order deemed Mr. Wolchko the prevailing party on three issues, ordering the HOA to reimburse him $1,500.00 in filing fees, to comply with community documents going forward, and levying a civil penalty of $150.00 against the Association.

Case Overview

Case Number

25F-H025-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Samuel Fox

Hearing Date

April 14, 2025

Petitioner

George Wolchko

Respondent

Victoria Manor Management & Property Owners Association

Respondent’s Counsel

Christopher Duren (of Gottlieb Law, PLC)

Key Parties and Witnesses

• George Wolchko: The Petitioner, owner of a home in the Victoria Manor community since 2018 and a former board member (2018-2023). Testified on his own behalf.

• Victoria Manor Management & Property Owners Association: The Respondent, a planned community in Mesa, Arizona, consisting of eight units and seven owners.

• Joseph Kidd: A current HOA board member, serving since November 2022. Testified for the Respondent.

• Michael Mott: A current HOA board member. Was present at the hearing but did not testify.

• Kachina Management, Inc.: The HOA’s management company, contracted in April 2024.

• Chris Jones: Elected to the board in September 2024 but resigned shortly thereafter, creating the board vacancy at the heart of Claim 4.

Analysis of Claims, Evidence, and Findings

Claim 1: Violation of AZ Law on Delivery of Community Documents

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1805 and its governing documents by failing to provide a copy of the Kachina Management contract despite numerous requests beginning in May 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Made his first formal email request for the contract on May 6, 2024. He followed up on May 12 and May 26.

◦ The management company, Kachina, responded on May 29, offering an in-person review on June 3 or 4.

◦ Wolchko testified that driving 45 minutes each way was not a “reasonably available” means of access, especially when a digital copy existed and he travels internationally. He noted the CC&Rs explicitly allow for delivery by mail.

◦ After canceling an in-person appointment due to an emergency, his repeated requests for a digital or mailed copy were met with insistence on in-person review.

◦ The contract was finally produced in February 2025, nearly a year after the initial request and only after the petition was filed.

• Respondent’s Position:

◦ Argued that by offering in-person inspection at their office, they fulfilled their statutory obligation to make records “reasonably available for examination.”

◦ Emails from Kachina Management to Wolchko confirmed they had prepared the documents for his review on the dates offered. They stated Wolchko canceled the appointment and never rescheduled.

• ALJ’s Finding: Violation Found. The ALJ concluded that more than ten business days passed between the initial request on May 6, 2024, and the date the documents were made available for examination on June 3, 2024. This delay constituted a failure to comply with A.R.S. § 33-1805.

Claim 2: Failure to Hold a Special HOA Meeting

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1804(A) and its Bylaws by failing to hold a special meeting requested via a valid petition signed by 25% of the members (Wolchko and Terrance Greer).

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Submitted a formal, signed request on June 19, 2024, to hold an “emergency HOA meeting to address repairs on a community common wall.”

◦ He argued this was a valid petition for a special meeting and that the Board ignored it.

◦ The Respondent falsely claimed the meeting was held during the September annual meeting, but the annual meeting notice and minutes contained no mention of the special meeting’s purpose.

• Respondent’s Position:

◦ Argued the request was for an “emergency meeting,” which, under statute, can only be called by the Board of Directors, not by member petition.

◦ Contended there is no provision in the governing documents for 25% of members to call an emergency meeting.

◦ Noted that at the annual meeting in September, Wolchko was explicitly asked if he had any issues to discuss and he declined.

• ALJ’s Finding: No Violation. The ALJ found that although the intent was clearly to request a special meeting, the petition was technically deficient. It used the term “emergency meeting,” did not include a place for the meeting, and did not use the phrase “special meeting.” While a “mere technicality,” this was sufficient to deem the petition ineffective. The Respondent was deemed the prevailing party on this issue.

Claim 3: Failure to Uphold CCRs Regarding Common Wall Repairs

• Petitioner’s Allegation: The HOA failed its duty to repair a common wall damaged by its own electrician in February 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ In February 2024, an HOA-hired contractor, Blue State Electric, performed work on an electrical conduit on his building’s exterior wall, which the board had previously designated a “true common area” with shared 50/50 maintenance costs.

◦ The work left a hole filled with foam that was not watertight. His immediate notification on March 15, 2024, was dismissed by board member Joseph Kidd, who claimed the hole was a pre-existing condition exposed by the work and therefore not the HOA’s responsibility.

◦ After months of the board refusing to act, he investigated the box himself, discovering an HOA wire running through his wall. He stated he only touched the box to prove it was an HOA issue after being told to “deal with it myself.”

◦ He disputed the validity of an $1,867 invoice from a second contractor (Canyon State), stating it was solicited by the board to blame him for damage he did not cause.

• Respondent’s Testimony & Evidence (Kidd):

◦ The electrical box and conduit are common elements that serve four buildings.

◦ Wolchko is not a licensed Arizona electrician and had no authorization to touch the common element.

◦ Kidd testified that after Wolchko sent a video of himself pulling the box out, the board hired Canyon State to inspect it.

◦ He acknowledged offering to help Wolchko patch the stucco but denied authorizing any electrical work.

• ALJ’s Finding: Violation Found. The ALJ determined that the preponderance of evidence supported that the “Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing.” Because the wall and electrical conduit were common elements, the board had a duty to maintain them in good repair. The board “declined to correct the problem its contractor caused,” thus violating the Bylaws and CC&Rs.

Claim 4: Failure to Maintain Required Number of Board Members

• Petitioner’s Allegation: The HOA violated its Bylaws (Article IV, Section 1), which require a board of “no less than three (3) persons,” by operating with only two members.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Following the September 19, 2024 election, three members were elected: Joseph Kidd, Michael Mott, and Chris Jones.

◦ Chris Jones resigned almost immediately, leaving the board with two members.

◦ He argued that while the bylaws state a vacancy “may be filled” by the remaining directors, this grants authority, it does not waive the fundamental requirement of having at least three members.

◦ He noted that two other owners (himself and Terrance Greer), representing 25% of the HOA, were willing to serve, so the vacancy could be filled.

• Respondent’s Testimony & Evidence (Kidd):

◦ Confirmed Jones resigned by early October 2024.

◦ Stated the board reached out to other members who expressed no interest in serving.

◦ Testified that Kachina Management advised them that filling the seat was at their discretion.

◦ The Respondent’s legal argument was that the Bylaw’s use of the word “may” (“may be filled”) makes filling the vacancy optional, not mandatory.

• ALJ’s Finding: Violation Found. The ALJ was “not persuasive” by the Respondent’s argument. The decision states: “This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.” The preponderance of evidence established that the HOA violated its Bylaws by not having enough Board members.

Final Decision and Order

• Prevailing Party: George Wolchko was deemed the prevailing party on Petition Issues 1, 3, and 4. Victoria Manor was deemed the prevailing party on Issue 2.

• Reimbursement: The Respondent was ordered to pay the Petitioner $1,500.00 for filing fees within thirty days.

• Compliance: The Respondent was directed to “comply with the requirements of its Community Documents going forward.”

• Civil Penalty: A civil penalty of $150.00 was levied against the Respondent.

• Decision Date: May 5, 2025.


Questions

Question

How long does the HOA have to provide records after I request them?

Short Answer

The HOA has ten business days to fulfill a request to examine or provide copies of records.

Detailed Answer

Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.

Alj Quote

A.R.S. § 33-1805 provides an association 'ten business days to fulfill a request for examination' or 'to provide copies of the requested records.' … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • deadlines
  • HOA obligations

Question

Can homeowners call an 'emergency meeting' regarding repairs?

Short Answer

Generally, no. Homeowners should request a 'special meeting' instead, as 'emergency meetings' are typically reserved for the Board.

Detailed Answer

While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an 'emergency meeting' was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request 'special meetings'.

Alj Quote

In the context of the communications about this meeting, it is clear that Petitioner was requesting a 'special meeting' not an 'emergency meeting,' which can only be called by the Board.

Legal Basis

Bylaws

Topic Tags

  • meetings
  • procedure
  • homeowner rights

Question

What specific details must be included in a petition for a special meeting?

Short Answer

The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.

Detailed Answer

Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label ('special meeting')—can render a petition invalid, even if it has the required number of signatures.

Alj Quote

The petition did not include a place for the meeting, the topic to be discussed, or the phrase 'special meeting.' … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.

Legal Basis

Bylaws Article III, Section 4

Topic Tags

  • meetings
  • petitions
  • technicalities

Question

Is the HOA responsible if a contractor they hired does poor work on a common element?

Short Answer

Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.

Detailed Answer

If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.

Alj Quote

The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.

Legal Basis

Bylaws Article IV, Section 3; CC&R Section 4.05(2)

Topic Tags

  • maintenance
  • common elements
  • contractors

Question

Can the HOA Board operate with fewer members than the Bylaws require?

Short Answer

No. If the Bylaws state a minimum number of directors, the Board must maintain that number.

Detailed Answer

The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.

Alj Quote

Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.

Legal Basis

Bylaws Article IV, Section 1

Topic Tags

  • board composition
  • bylaws
  • vacancies

Question

Does a Bylaw saying a vacancy 'may be filled' mean the Board can choose to leave a seat empty?

Short Answer

No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.

Detailed Answer

HOAs cannot use the word 'may' in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.

Alj Quote

Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.

Legal Basis

Bylaws

Topic Tags

  • legal interpretation
  • board vacancies
  • bylaws

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • reimbursement
  • fees
  • penalties

Question

Can the HOA be fined for these violations?

Short Answer

Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.

Detailed Answer

The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.

Alj Quote

A Civil Penalty of $150.00 is found to be appropriate in this matter.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • fines
  • civil penalty
  • enforcement

Case

Docket No

25F-H025-REL

Case Title

George Wolchko v. Victoria Manor Management & Property Owners Association

Decision Date

2025-05-05

Alj Name

Samuel Fox

Tribunal

OAH

Agency

ADRE

Questions

Question

How long does the HOA have to provide records after I request them?

Short Answer

The HOA has ten business days to fulfill a request to examine or provide copies of records.

Detailed Answer

Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.

Alj Quote

A.R.S. § 33-1805 provides an association 'ten business days to fulfill a request for examination' or 'to provide copies of the requested records.' … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • deadlines
  • HOA obligations

Question

Can homeowners call an 'emergency meeting' regarding repairs?

Short Answer

Generally, no. Homeowners should request a 'special meeting' instead, as 'emergency meetings' are typically reserved for the Board.

Detailed Answer

While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an 'emergency meeting' was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request 'special meetings'.

Alj Quote

In the context of the communications about this meeting, it is clear that Petitioner was requesting a 'special meeting' not an 'emergency meeting,' which can only be called by the Board.

Legal Basis

Bylaws

Topic Tags

  • meetings
  • procedure
  • homeowner rights

Question

What specific details must be included in a petition for a special meeting?

Short Answer

The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.

Detailed Answer

Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label ('special meeting')—can render a petition invalid, even if it has the required number of signatures.

Alj Quote

The petition did not include a place for the meeting, the topic to be discussed, or the phrase 'special meeting.' … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.

Legal Basis

Bylaws Article III, Section 4

Topic Tags

  • meetings
  • petitions
  • technicalities

Question

Is the HOA responsible if a contractor they hired does poor work on a common element?

Short Answer

Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.

Detailed Answer

If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.

Alj Quote

The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.

Legal Basis

Bylaws Article IV, Section 3; CC&R Section 4.05(2)

Topic Tags

  • maintenance
  • common elements
  • contractors

Question

Can the HOA Board operate with fewer members than the Bylaws require?

Short Answer

No. If the Bylaws state a minimum number of directors, the Board must maintain that number.

Detailed Answer

The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.

Alj Quote

Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.

Legal Basis

Bylaws Article IV, Section 1

Topic Tags

  • board composition
  • bylaws
  • vacancies

Question

Does a Bylaw saying a vacancy 'may be filled' mean the Board can choose to leave a seat empty?

Short Answer

No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.

Detailed Answer

HOAs cannot use the word 'may' in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.

Alj Quote

Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.

Legal Basis

Bylaws

Topic Tags

  • legal interpretation
  • board vacancies
  • bylaws

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • reimbursement
  • fees
  • penalties

Question

Can the HOA be fined for these violations?

Short Answer

Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.

Detailed Answer

The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.

Alj Quote

A Civil Penalty of $150.00 is found to be appropriate in this matter.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • fines
  • civil penalty
  • enforcement

Case

Docket No

25F-H025-REL

Case Title

George Wolchko v. Victoria Manor Management & Property Owners Association

Decision Date

2025-05-05

Alj Name

Samuel Fox

Tribunal

OAH

Agency

ADRE

Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s

Posted on by

Case Summary

Case ID 24F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-03
Administrative Law Judge Adam D. Stone
Outcome total
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Teri S. Morcomb & J. Ted Morcomb Counsel Jeffrey Brie, Esq.
Respondent Sierra Tortuga Homeowner’s Association Counsel Phillip Brown, Esq. and Kelly Oetinger, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.

Key Issues & Findings

Failure to provide documents

Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.

Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Declaration Section F

Analytics Highlights

Topics: setback enforcement, document request, HOA governance, filing fee refund, A.R.S. 33-1805
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 33-1804
  • Declaration Section F

Video Overview

Audio Overview

Decision Documents

24F-H015-REL Decision – 1102948.pdf

Uploaded 2026-01-23T18:02:19 (53.9 KB)

24F-H015-REL Decision – 1116083.pdf

Uploaded 2026-01-23T18:02:23 (50.5 KB)

24F-H015-REL Decision – 1129495.pdf

Uploaded 2026-01-23T18:02:26 (148.2 KB)





Study Guide – 24F-H015-REL


{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }






Blog Post – 24F-H015-REL


{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }


Case Participants

Petitioner Side

  • Teri S. Morcomb (petitioner)
    Lot 8 owner, testified
  • J. Ted Morcomb (petitioner)
    Lot 8 owner
  • Jeffrey T. Brei (petitioner attorney)
  • Tracy Allen Bogardis (witness)
    Civil Engineer
    Testified regarding drainage/hydrology

Respondent Side

  • Phillip Brown (HOA attorney)
  • Kelly Oetinger (HOA attorney)
  • Robert Leuen (board president)
    Sierra Tortuga HOA
    Testified
  • Marcella Bernadette Aguilar (witness)
    Sierra Tortuga HOA
    Lot 9 owner, testified
  • Abel Sodto (lot owner)
    Sierra Tortuga HOA
    Lot 9 owner, former Board/ARC member, subject of violation
  • Clint Stoddard (board member)
    Sierra Tortuga HOA
    Investigator
  • Benny Medina (board member)
    Sierra Tortuga HOA
    Investigator, former president
  • Joseph D. Martino (ARC member)
    Sierra Tortuga HOA
    Former Architectural Committee Head
  • Chris Stler (board member)
    Sierra Tortuga HOA
    Vice President of HOA
  • Yvon Posche (board member)
    Sierra Tortuga HOA
    Secretary of HOA
  • Steve Brockam (board member)
    Sierra Tortuga HOA
    Board Director
  • Perry Terren (ARC chair)
    Sierra Tortuga HOA
    ARC Chairman and Board Director
  • Jeremy Thompson (law clerk)
    HOA Attorney's office
  • Mike Shupe (former HOA attorney)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Tim Ross (board member)
    Sierra Tortuga HOA
    Former board/investigator, criticized current board actions
  • Susan Nicolson (Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Jennifer J Sullivan v. The Village at Elk Run Homeowners Association,

Posted on by

Case Summary

Case ID 23F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-08
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennifer J Sullivan Counsel —
Respondent The Village at Elk Run Homeowners Association, Inc. Counsel Michael S. McLeran

Alleged Violations

Article 4, Section 4.1 of the Community’s CC&Rs; ARIZ. REV. STAT. § 33-1804(D)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.

Why this result: The tribunal determined the Petitioner failed to meet her burden, as her short-term rental operation constituted a prohibited nonresidential use/business under Section 4.1 of the CC&Rs, which only permits leasing for Month to Month or Longer Terms.

Key Issues & Findings

Challenging HOA Violation Notice for Short-Term Rental Restriction

Petitioner challenged the Courtesy Violation Notice issued by the HOA for operating a short-term rental (Airbnb) with a minimum rental period less than month-to-month, arguing the CC&Rs did not explicitly prohibit such rentals. The HOA maintained that Section 4.1 prohibited nonresidential use, unless leased for month-to-month or longer terms, thereby prohibiting short-term rentals/business use.

Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Analytics Highlights

Topics: HOA governance, short-term rental, CC&R interpretation, business use, 30-day minimum
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Video Overview

Audio Overview

https://open.spotify.com/episode/32WfGJkSa7XHp9ynvDHnHF

Decision Documents

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-01-23T17:56:20 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-01-23T17:56:23 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-01-23T17:56:27 (117.7 KB)

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jennifer J Sullivan (petitioner)
    Appeared on her own behalf
  • David Sheffield (petitioner attorney)
    Provided legal opinion to Petitioner in 2020

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Represented Respondent
  • Teresa Bale (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Board President; Witness for Respondent
  • John R. Bale (developer/witness)
    The Village at Elk Run Homeowners Association, Inc.
    Original developer who drafted/signed CC&Rs; Witness for Respondent
  • Jason Miller (attorney)
    Provided opinion letter regarding CC&Rs to the Board
  • Beth Moly (attorney)
    Issued formal opinion letter regarding Section 4.1
  • Melanie Lashley (property manager)
    Homeco Rent
    Contacted by Petitioner regarding rental rules
  • Betsy Snow (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Won board election against Petitioner

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

Posted on by

Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wanda Swartling Counsel —
Respondent Val Vista Park Townhome Association of Mesa Counsel Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • 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. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-01-23T17:58:11 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-01-23T17:58:14 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

Uploaded 2026-01-23T17:58:19 (1989.0 KB)

23F-H057-REL Decision – 1071121.pdf

Uploaded 2026-01-23T17:58:23 (4055.1 KB)

23F-H057-REL Decision – 1071122.pdf

Uploaded 2026-01-23T17:58:27 (676.0 KB)

23F-H057-REL Decision – 1071126.pdf

Uploaded 2026-01-23T17:58:31 (3343.5 KB)

23F-H057-REL Decision – 1071127.pdf

Uploaded 2026-01-23T17:58:36 (3328.5 KB)

23F-H057-REL Decision – 1071503.pdf

Uploaded 2026-01-23T17:58:39 (49.2 KB)

23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-01-23T17:58:42 (114.8 KB)

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Wanda Swartling (petitioner)
    Val Vista Park Townhome Association
    Homeowner, VVP Unit 82

Respondent Side

  • Chad Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Steve Cheff (property manager / witness)
    Heywood Community Management
    Also community manager
  • Patti Locks (board member)
    Val Vista Park HOA
    Also listed as candidate/incumbent
  • Stephanie Hamrock (board member / witness)
    Val Vista Park HOA
  • Troy Goudeau (board member)
    Val Vista Park HOA
    Elected director
  • Paul Wilcox (board member)
    Val Vista Park HOA
    Elected director
  • Bettie Smiley (board member)
    Val Vista Park HOA
  • Carlee Collins (administrative assistant)
    Heywood Community Management
  • Alli (attorney)
    Maxwell & Morgan, P.C.
    Associate attorney

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Other Participants

  • Shelley Dusek (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Lori Solomon (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Tanya (committee attendee)
    Val Vista Park HOA
    Attended Building Architectural Committee meeting
  • David Clem Sr (homeowner)
    Val Vista Park Townhomes
    Email recipient

Lisa Kittredge v. SunBird Golf Resort Homeowners Association

Posted on by

Case Summary

Case ID 23F-H040-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-13
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Kittredge Counsel —
Respondent SunBird Golf Resort Homeowners Association Counsel Lori N Brown

Alleged Violations

ARIZ. REV. STAT. § 32-2199 et seq.

Outcome Summary

The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).

Key Issues & Findings

Expenditure of HOA Contingency Funds for Golf Course Drainage Maintenance

Petitioner alleged the HOA improperly used annual assessments (Contingency Fund) to pay $15,968 (capped at $20,000) for cleaning drainage wells on the privately owned SunBird Golf Club property. The ALJ concluded that under the 2015 CC&Rs, as amended in 2021, the HOA was only permitted to expend funds collected specifically pursuant to Section 6.7(C) (Capital Improvement Assessment for Golf Course) for golf course drainage issues, and therefore, using the Contingency fund violated the governing documents.

Orders: Respondent must reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Governance, CC&R Interpretation, Unauthorized Expenditure, Contingency Fund, Drainage Maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment

Video Overview

Audio Overview

https://open.spotify.com/episode/6DiTZ5E9HyIL3tHhYRB9jg

Decision Documents

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-01-23T17:55:43 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-01-23T17:55:47 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-01-23T17:55:51 (155.3 KB)

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from doubt.

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

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from doubt.

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

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Kittredge (petitioner)
    Property owner, appeared on her own behalf.
  • Beth Lockwood (witness)
    Testified for Petitioner.

Respondent Side

  • Lori N. Brown (HOA attorney)
    Gordon Rees Scully Mansukhani LLP
  • Ben Bednarek (HOA attorney)
    Also referred to as Benjamin Dinard and Mr. Venorf/Benark.
  • Layne Barney (General Manager)
    SunBird Golf Resort Homeowners Association
    Also referred to as Layne Varney.
  • Charles Brian Heitbrink (board member)
    SunBird Golf Resort Homeowners Association
    Secretary of the Board of Directors. Also referred to as Charles Height.
  • Dirk (board member)
    SunBird Golf Resort Homeowners Association
    Moved motion regarding drainage in Dec 2022 meeting.
  • Jim (board member)
    SunBird Golf Resort Homeowners Association
    Seconded motion regarding drainage in Dec 2022 meeting.
  • Nancy (board member)
    SunBird Golf Resort Homeowners Association
    Made motion regarding golf purchases in Dec 2022 meeting.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Also referred to as Tammy Igener.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Lewis Ne (Expert (City Engineer))
    City of Chandler
    Consulted regarding storm water drainage.
  • Thomas (Former HOA President)
    Signed 1999 declaration.

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H030-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-17
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford (Norm) S. Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1812(A)(6)

Outcome Summary

The Administrative Law Judge granted the petition, finding that the Saguaro Crest Homeowners' Association violated ARIZ. REV. STAT. § 33-1812(A)(6). The violation occurred because the Association's governing documents did not permit secret ballots, necessitating that the completed ballot contain the name, address, and signature of the voter, a requirement the distributed ballots failed to meet. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee and comply with the statute henceforth.

Key Issues & Findings

Violation of voting statute requiring name, address, and signature on completed ballot.

Petitioner alleged that the HOA's vote by written ballot was non-compliant because the individual ballots lacked the required name, address, and signature of the voter. The ALJ concluded that since the community documents did not permit secret ballots, the plain language of A.R.S. § 33-1812(A)(6) required the ballot itself (distinct from the envelope) to contain the name, address, and signature, and the HOA failed to meet this requirement.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 and henceforth comply with ARIZ. REV. STAT. § 33-1812(A)(6).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1812(A)(6)
  • ARIZ. REV. STAT. § 33-1812

Analytics Highlights

Topics: HOA governance, Voting procedures, Secret ballot, Statutory interpretation, Dissolution vote
Additional Citations:

  • ARIZ. REV. STAT. § 33-1812(A)(6)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1812

Video Overview

Audio Overview

https://open.spotify.com/episode/3zvQyrzyXnPnq4xiANenbF

Decision Documents

23F-H030-REL Decision – 1037366.pdf

Uploaded 2026-01-23T17:53:39 (47.2 KB)

23F-H030-REL Decision – 1049922.pdf

Uploaded 2026-01-23T17:53:42 (128.9 KB)

Questions

Question

Can my HOA use secret ballots where I only sign the envelope?

Short Answer

Only if the community's governing documents explicitly permit secret ballots.

Detailed Answer

Under Arizona law, an HOA cannot use secret ballots (where identification is only on the envelope) unless the community documents specifically permit them. If the documents are silent on the matter, the ballot itself must contain the voter's identification.

Alj Quote

The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter… Nothing in the Association’s governing documents permitted secret ballots.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • ballots
  • governing documents

Question

What specific information must be written on an HOA ballot?

Short Answer

The ballot must contain the voter's name, address, and signature.

Detailed Answer

Unless secret ballots are authorized by the governing documents, the ballot itself must include three specific items: the voter's name, the voter's address, and the voter's signature.

Alj Quote

Accordingly, the completed ballots in the vote at issue were required to contain the name, address, and signature of the person voting.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • compliance

Question

Does signing my signature count as writing my name on a ballot?

Short Answer

No, a signature and a name are separate legal requirements.

Detailed Answer

The ALJ determined that a signature does not satisfy the requirement to provide a name. The statute lists them separately, meaning both must be present on the ballot.

Alj Quote

Further, the plain language of the statute identifies that each ballot must contain the name, address, and signature of the person voting. The signature is a separate requirement from the name, and the ballot was required to have all three items.

Legal Basis

Statutory Interpretation

Topic Tags

  • voting
  • legal definitions

Question

Can the HOA claim the envelope and ballot together count as a 'completed ballot'?

Short Answer

No, the law distinguishes between the ballot itself and the envelope.

Detailed Answer

The HOA cannot argue that the envelope is part of the ballot to satisfy identification requirements when secret ballots are not permitted. The statute treats the ballot and the envelope as distinct items.

Alj Quote

The plan language of the statute delineates between the ballot in a vote and the envelope in a secret ballot vote.

Legal Basis

ARIZ. REV. STAT. § 33-1812

Topic Tags

  • voting
  • ballots

Question

Who has to prove that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must provide enough evidence to prove that it is more likely than not that the HOA violated the statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(6).

Legal Basis

Administrative Procedure

Topic Tags

  • procedure
  • burden of proof

Question

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

Short Answer

Yes, the judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the Administrative Law Judge rules in favor of the homeowner, they may order the HOA to reimburse the $500 filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • reimbursement

Question

What agency handles disputes between homeowners and HOAs in Arizona?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Homeowners can file petitions regarding violations of community documents or statutes with the Department of Real Estate, which are then heard by the Office of Administrative Hearings.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. § 32-2102

Topic Tags

  • jurisdiction
  • agencies

Case

Docket No
23F-H030-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-17
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA use secret ballots where I only sign the envelope?

Short Answer

Only if the community's governing documents explicitly permit secret ballots.

Detailed Answer

Under Arizona law, an HOA cannot use secret ballots (where identification is only on the envelope) unless the community documents specifically permit them. If the documents are silent on the matter, the ballot itself must contain the voter's identification.

Alj Quote

The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter… Nothing in the Association’s governing documents permitted secret ballots.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • ballots
  • governing documents

Question

What specific information must be written on an HOA ballot?

Short Answer

The ballot must contain the voter's name, address, and signature.

Detailed Answer

Unless secret ballots are authorized by the governing documents, the ballot itself must include three specific items: the voter's name, the voter's address, and the voter's signature.

Alj Quote

Accordingly, the completed ballots in the vote at issue were required to contain the name, address, and signature of the person voting.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • compliance

Question

Does signing my signature count as writing my name on a ballot?

Short Answer

No, a signature and a name are separate legal requirements.

Detailed Answer

The ALJ determined that a signature does not satisfy the requirement to provide a name. The statute lists them separately, meaning both must be present on the ballot.

Alj Quote

Further, the plain language of the statute identifies that each ballot must contain the name, address, and signature of the person voting. The signature is a separate requirement from the name, and the ballot was required to have all three items.

Legal Basis

Statutory Interpretation

Topic Tags

  • voting
  • legal definitions

Question

Can the HOA claim the envelope and ballot together count as a 'completed ballot'?

Short Answer

No, the law distinguishes between the ballot itself and the envelope.

Detailed Answer

The HOA cannot argue that the envelope is part of the ballot to satisfy identification requirements when secret ballots are not permitted. The statute treats the ballot and the envelope as distinct items.

Alj Quote

The plan language of the statute delineates between the ballot in a vote and the envelope in a secret ballot vote.

Legal Basis

ARIZ. REV. STAT. § 33-1812

Topic Tags

  • voting
  • ballots

Question

Who has to prove that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must provide enough evidence to prove that it is more likely than not that the HOA violated the statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(6).

Legal Basis

Administrative Procedure

Topic Tags

  • procedure
  • burden of proof

Question

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

Short Answer

Yes, the judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the Administrative Law Judge rules in favor of the homeowner, they may order the HOA to reimburse the $500 filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • reimbursement

Question

What agency handles disputes between homeowners and HOAs in Arizona?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Homeowners can file petitions regarding violations of community documents or statutes with the Department of Real Estate, which are then heard by the Office of Administrative Hearings.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. § 32-2102

Topic Tags

  • jurisdiction
  • agencies

Case

Docket No
23F-H030-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-17
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Saguaro Crest Homeowners' Association
    Also referred to as Clifford (Norm) Burnes and Clifford Barnes. Appeared pro se, testified on his own behalf.

Respondent Side

  • John T. Crotty (HOA attorney)
    LAW OFFICES OF COLLIN T. WELCH
    Represented Saguaro Crest Homeowners' Association. Referred to as Mr. Kate in transcript.
  • Esmeralda Serena Ayala-Martinez (HOA board president / witness)
    Saguaro Crest Homeowners' Association
    Also referred to as Serena Martinez. Called as witness by Petitioner.
  • David Medil (board member)
    Saguaro Crest Homeowners' Association
    Listed as a board member in testimony (also referred to as 'Dave Matt').
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association
    Listed as a board member in testimony (also referred to as 'Joseph Mar Martinez').

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Also referred to as Tammy Igenir.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.
  • V. Nunez (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.
  • D. Jones (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.
  • L. Abril (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.

Other Participants

  • Carolyn Wesen Mo (observer)
    Member of the public
    Present during the hearing.
  • Collin T. Welch (Attorney (Firm Principal))
    LAW OFFICES OF COLLIN T. WELCH
    Name appears in firm name affiliation of Respondent's counsel.

Roberta J Stevenson-McDemott v. Four Palms Homeowners

Posted on by

Case Summary

Case ID 22F-H2222033-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-08
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Roberta J Stevenson-McDermott Counsel —
Respondent Four Palms Homeowners Counsel Araceli Rodriguez

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.

Why this result: Petitioner failed to make a request for records in writing as required by A.R.S. § 33-1258.

Key Issues & Findings

Access to Association Financial and Other Records

Petitioner alleged the HOA violated A.R.S. § 33-1258 by denying her access and copies of various financial records dating back to 2016. The HOA argued they provided financial summaries and offered in-person review, noting Petitioner failed to make a proper written request.

Orders: Petition denied. Respondent is directed to comply with A.R.S. § 33-1258 going forward upon a proper written request from Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248
  • A.A.C. R2-19-119
  • A.R.S. § 32-2199 et seq.

Analytics Highlights

Topics: Financial Records, Written Request Requirement, HOA Governance, Condominium Act
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222033-REL Decision – 967350.pdf

Uploaded 2026-01-23T17:45:19 (46.5 KB)

22F-H2222033-REL Decision – 982397.pdf

Uploaded 2026-01-23T17:45:21 (99.3 KB)

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Roberta J Stevenson-McDermott (petitioner)
  • Sean Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Lenor Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Philip Smith (owner/witness)
    Provided letter of support (not admitted as evidence)
  • c. serrano (clerical staff)
    Transmitted document for Petitioner

Respondent Side

  • Araceli Rodriguez (HOA attorney)
    Yuma Law Firm (inferred)
    Represented Four Palms Homeowners Association
  • Faye Burson (board member)
    Four Palms Homeowners HOA
    Vice President and witness (also listed as FA Buren)
  • Mario Salinas (board member)
    Four Palms Homeowners HOA
    Treasurer and witness (also listed as Mario Selenus)
  • Gilbert Sto (board member)
    Four Palms Homeowners HOA
    President
  • Lesie Blessing (board member)
    Four Palms Homeowners HOA
    Vice President (2016 board) and Secretary (current board)
  • Gail Hall (board member)
    Four Palms Homeowners HOA
    Fifth member
  • Linia Ohn (former board member)
    Four Palms Homeowners HOA
    Received payments in 2018 (also listed as Lenia own)
  • Scott Hoser (former board member)
    Four Palms Homeowners HOA
    Fifth member (2016 board)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (ADRE Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    ADRE
    Transmitted decision

Other Participants

  • Lisa Bon (former board member/owner)
    Secretary (2016 board); provided letter of support to Petitioner

Judy Clapp v. Forest Trails Homeowners Association

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Case Summary

Case ID 22F-H2221026-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-29
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Judy Clapp Counsel Kevin Harper
Respondent Forest Trails Homeowners Association Counsel Edward D. O'Brien; Edith I. Rudder

Alleged Violations

Declaration § 2.2; Declaration § 2.21; Architectural Guidelines

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.

Why this result: The Petitioner failed to meet the evidentiary burden that the HOA violated the Declaration or related statutes. The ALJ found that the Declaration permits landscaping in the common area (Section 2.2) and the petitioner presented no legal authority mandating the disputed area remain solely available for parking.

Key Issues & Findings

Alleged violation concerning landscaping in common area preventing parking.

Petitioner Judy Clapp alleged the HOA improperly approved the adjacent homeowner's (Normans) landscaping project in the common area next to Lot 1473 Trailhead. She claimed this blocked a historical parking area used by multiple homeowners, violating Declaration Section 2.2 (common area use for benefit of all members, including parking as a permitted use) and Architectural Guidelines (prohibiting exclusive use of common area).

Orders: The petition was dismissed. The ALJ found that the Petitioner failed to meet the burden of proof to establish that the Respondent violated the Declaration or any statute.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Declaration § 2.2
  • Declaration § 2.21
  • Architectural Guidelines
  • A.R.S. § 32-2199(B)
  • Declaration § 3.4
  • Declaration § 4.1

Analytics Highlights

Topics: Common Area, Landscaping, Parking, Architectural Control Committee, Exclusive Use, HOA Governance
Additional Citations:

  • Declaration § 2.2
  • Declaration § 2.21
  • Architectural Guidelines
  • A.R.S. § 32-2199(B)
  • Declaration § 3.4
  • Declaration § 4.1

Audio Overview

Decision Documents

22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Hearing.pdf

Uploaded 2026-01-27T21:20:57 (92.4 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Petition.pdf

Uploaded 2026-01-27T21:20:59 (125.2 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Hearing_Scheduled.pdf

Uploaded 2026-01-27T21:21:01 (194.1 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Notice_AppearanceRespondent.pdf

Uploaded 2026-01-27T21:21:03 (218.4 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Hearing.pdf

Uploaded 2026-01-27T21:21:06 (1111.9 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Petition.pdf

Uploaded 2026-01-27T21:21:08 (1303.7 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Payment.pdf

Uploaded 2026-01-27T21:21:10 (223.9 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Petition.pdf

Uploaded 2026-01-27T21:21:12 (1183.8 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Response_Petition_Form.pdf

Uploaded 2026-01-27T21:21:15 (72.2 KB)

22F-H2221026-REL Decision – 958497.pdf

Uploaded 2026-01-27T21:21:16 (122.6 KB)

22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf

Uploaded 2026-01-27T21:21:18 (92.4 KB)

22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf

Uploaded 2026-01-27T21:21:19 (125.2 KB)

22F-H2221026-REL Decision – HO22-21026_Hearing_Scheduled.pdf

Uploaded 2026-01-27T21:21:20 (194.1 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_AppearanceRespondent.pdf

Uploaded 2026-01-27T21:21:22 (218.4 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_Hearing.pdf

Uploaded 2026-01-27T21:21:23 (1111.9 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_Petition.pdf

Uploaded 2026-01-27T21:21:25 (1303.7 KB)

22F-H2221026-REL Decision – HO22-21026_Payment.pdf

Uploaded 2026-01-27T21:21:26 (223.9 KB)

22F-H2221026-REL Decision – HO22-21026_Petition.pdf

Uploaded 2026-01-27T21:21:28 (1183.8 KB)

22F-H2221026-REL Decision – HO22-21026_Response_Petition_Form.pdf

Uploaded 2026-01-27T21:21:30 (72.2 KB)





Briefing Doc – 22F-H2221026-REL


Case Briefing: Judy Clapp v. Forest Trails Homeowners Association

Executive Summary

This document synthesizes the proceedings of the administrative hearing held on March 9, 2022, regarding Docket Number 22F-H2221026-l. The dispute involves a challenge by petitioner Judy Clapp against the Forest Trails Homeowners Association (HOA) concerning the landscaping of an eight-foot unpaved common area adjacent to 1473 Trail Head (the “Norman lot”).

The central conflict involves the Board’s decision to allow a homeowner to install a rock berm on association-owned land that had historically functioned as a parking lane for residents accessing a nearby trail head. The petitioner alleges this action violates the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by granting exclusive use of common area to one homeowner and eliminating a long-standing community benefit. The association contends that the Board acted within its authority to approve architectural requests, maintained consistency with community-wide landscaping standards, and addressed legitimate nuisance and erosion concerns.

——————————————————————————–

Case Overview and Hearing Details

• Date of Hearing: March 9, 2022

• Administrative Law Judge: Alvin Moses Thompson

• Petitioner: Judy Clapp (Represented by Kevin Harper)

• Respondent: Forest Trails Homeowners Association (Represented by Ed O’Brien)

• Key Witnesses: Judy Clapp (Petitioner); Dean Meyers (Board Member/Witness for Respondent)

• Subject Property: Common area adjacent to 1473 Trail Head, Prescott, Arizona.

——————————————————————————–

Primary Legal and Regulatory Framework

The dispute centers on the interpretation of specific governing documents produced as evidence:

Amended Declaration of Covenants, Conditions, and Restrictions (CC&Rs)

• Section 2.2 (Common Areas and Open Space): States that common areas “shall be for the use and benefit of all members” and should be left in their natural state unless used for specific purposes, including “trails, walkways, driveways, parking areas, appropriate signs, recreational amenities, [and] landscaping.”

• Section 3.4: Grants the association the authority to “own, repair, manage, operate, and maintain” common areas according to the plat.

• Section 3.4.9: Designates the Architectural Control Committee (ACC) as the “judge of all aesthetic matters” on the common area.

• Section 4.1: Provides the Board with flexibility in its decision-making regarding association property.

Architectural Guidelines

• Landscaping Provisions: Permitted on the unpaved association-owned area (approx. 8 feet) between the lot line and the street only with ACC approval.

• Exclusive Use Restriction: Mandates that any such approval “will not give the property owner exclusive use of this association property.”

——————————————————————————–

Main Themes and Arguments

1. Historical Use vs. New Architectural Approval

The petitioner argues that the area in question served as a de facto parking lane for approximately 15–20 years, accommodating up to three vehicles.

• Petitioner Position: The removal of this parking area harms residents who now must walk an additional mile or more to access trail heads. Clapp asserts the association consistently denied similar requests in the past to protect common area access.

• Respondent Position: The HOA argues that parking was never a “guaranteed right” or a “written amenity” in the declaration. They contend the Board could not “say no” to the Normans’ request because hundreds of other homeowners have similar roadside landscaping.

2. Allegations of “Exclusive Use”

A major point of contention is whether the rock berm constitutes a violation of the rule against “exclusive use.”

• Petitioner’s Argument: The installation of large boulders and a rock berm makes it impossible for vehicles to park and “unsafe” or “risky” for pedestrians to walk over, effectively gifting the land to the adjacent homeowner.

• Respondent’s Argument: The area is not fenced or walled. Members of the public or homeowners can still theoretically walk on it, meaning use is not exclusive. Dean Meyers testified that the area is “less accessible” but still accessible at the ends.

3. Nuisance Mitigation and Safety

The HOA justifies the landscaping as a solution to long-standing issues.

• Respondent’s Evidence: Dean Meyers testified that the parking area created nuisances including noise (dogs, yelling), trash, and public intrusion 40 feet from the Normans’ kitchen. Furthermore, Meyers cited an erosion issue where water was undermining the cement curb, a problem he claims the landscaping resolved.

• Petitioner’s Rebuttal: Clapp, a former board member of 10 years, testified she never heard of safety, noise, or trash complaints regarding this site until February 2021, four months after the rocks were installed. She suggested the “safety” argument was an after-the-fact justification.

4. Conflict of Interest and Procedure

The petitioner raised concerns regarding the motivations behind the approval.

• Self-Serving Motivation: Witness Dean Meyers is a permanent board member and also the owner of the landscaping company hired by the Normans to perform the work.

• Lack of Formal Vote: Clapp testified that the work appeared to be allowed without a formal board vote, though respondent minutes from October 27, 2020, show the board requested gravel samples for the project.

——————————————————————————–

Critical Evidence and Testimony

Photographic Evidence (Exhibit 6)

The hearing reviewed nine photographs showing the evolution of the site:

• Before: A dirt “parking lane” capable of holding cars.

• After: A “rock berm” consisting of large boulders and smaller rocks that completely prohibit vehicle access.

Comparison to Other Amenities

Clapp pointed to the community tennis courts as evidence of unfair treatment.

• Tennis Court Parking: The HOA recently expanded and paved parking for tennis players (Exhibits 17, 18).

• Trail Head Parking: Conversely, the HOA eliminated parking for hikers at the trail head, which Clapp described as the community’s only other amenity.

Legal Opinion of Jim Atkinson

An email exchange (Exhibit 7) involving former Board President and attorney Jim Atkinson was introduced. Atkinson’s noted opinion stated:

• The 8-foot area is common area property, “no different than its ownership of the paved areas.”

• Parking is a permitted use under Section 2.2.

• The Board “never agreed to allow a lot owner to block access to the shoulder area.”

——————————————————————————–

Conclusions and Sought Relief

The Petitioner seeks an order confirming that the CC&Rs prohibit these specific landscaping changes and requiring the association to restore the common area to its original condition.

The Respondent maintains that the Board acted within its discretionary authority to manage common areas and treat all members fairly by approving a standard landscaping request. They argue the Petitioner is seeking a “prescriptive easement” to park in a specific spot, a right they claim does not exist under the governing documents or Arizona law.

Summary Table of Arguments

Petitioner’s View

Respondent’s View

Land Use

Reserved for the benefit of all members (parking/trails).

Subject to Board management and aesthetic discretion.

Accessibility

Rock berm creates “exclusive use” by blocking access.

No fence exists; property remains technically accessible.

Safety/Nuisance

No evidence of prior complaints; “punitive” decision.

Resolved erosion, trash, and noise nuisances.

Consistency

Association has historically denied such requests.

Hundreds of other lots have identical landscaping.

Board Ethics

Decision was self-serving (witness was the contractor).

Business was private between the contractor and homeowner.






Study Guide – 22F-H2221026-REL


Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

——————————————————————————–

Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.






Blog Post – 22F-H2221026-REL


Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

——————————————————————————–

Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.


Case Participants

Petitioner Side

  • Judy Clapp (Petitioner)
    Homeowner
    Also referred to as Judith Ellen Black
  • Kevin Harper (Petitioner Attorney)
    Harper Law PLC
  • Rick Ohanesian (Petitioner)
    Homeowner
    Listed in Respondent's Amended Notice of Appearance
  • Lucy McMillan (Former Board Member)
    Forest Trails HOA
    Listed as witness but not present

Respondent Side

  • Edward D. O'Brien (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Edith I. Rudder (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Dean Meyers (Board Member)
    Forest Trails HOA Board
    Developer position on board; Professional landscaper hired by the Normans; Witness
  • James Norman (Homeowner)
    Forest Trails HOA
    Owner of lot 30; requested landscaping
  • Cynthia Norman (Homeowner)
    Forest Trails HOA
    Owner of lot 30
  • Jim Atkinson (HOA Attorney)
    Former Board President; identified as Association attorney in testimony
  • Nancy Char (Board President)
    Forest Trails HOA
    Current president mentioned in testimony
  • Marissa (Property Manager)
    Community Asset Management LLC
    Mentioned in meeting minutes regarding sample handling

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Transcribed as 'Alvin Moses Thompson' in audio transcript
  • Dan Gardner (HOA Coordinator)
    ADRE
  • Louis Dettorre (Commissioner)
    ADRE

Other Participants

  • Lenor Hemphill (Former Board Member)
    Forest Trails HOA
    Sent email regarding landscaping issue