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

Case Summary

Case ID 24F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-03
Administrative Law Judge Adam D. Stone
Outcome 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.
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)

This summary addresses the administrative hearing (No. 24F-H015-REL) involving Petitioners Teri S. Morcomb & J. Ted Morcomb and Respondent Sierra Tortuga Homeowner’s Association (HOA). The hearing was conducted by Administrative Law Judge (ALJ) Adam D. Stone on November 22 and December 20, 2023, concerning alleged violations of the community's governing documents and Arizona statutes.

Key Facts and Main Issues

The Petitioners filed a two-issue petition with the Arizona Department of Real Estate:

  1. Setback Enforcement: Violation of the Declaration of Restrictions (specifically Item F of the Second Declaration) by the HOA "not enforcing the 25ft setback provision".
  2. Document Disclosure: Violation of A.R.S. § 33-1805 by failing "to provide documents" requested by the Petitioners.

The central factual dispute revolved around Lot 9 (owned by Marcella Aguilar and Abel Sodto), which shares a property line with the Petitioners' Lot 8. Petitioners alleged that the Lot 9 owners made unapproved improvements—including grading, removal of native vegetation, and placement of large boulders—within the mandatory 25-foot setback. The Declaration requires Architectural Committee (ARC) approval for all improvements and any removal of native growth. An HOA investigation in September 2020 concluded that the Lot 9 improvements were neither submitted nor approved by the ARC, and Lot 9 was directed to submit plans within 30 days. Petitioners testified that Lot 9 failed to comply.

Key Arguments

  • Petitioner's Argument: The Association failed its mandatory duty to enforce the CC&Rs for over three years, particularly since the Lot 9 owner (Mr. Sodto) held influential positions (Director, President, ARC member) during the relevant period. Petitioners sought an order requiring the HOA to remedy the violation (remove boulders, revegetate). Petitioners' civil engineer, Tracy Bogardus, testified that Lot 8 did not cause Lot 9's drainage issues, invalidating the Lot 9 owners’ justification for the grading.
  • Respondent's Argument (HOA): The HOA denied the claims, arguing that Lot 9’s modification (referred to as a "driveway turnaround") was necessary for safety due to the steep lot configuration. The HOA asserted that the board has discretion to grant variances. The HOA also argued that selective enforcement against Lot 9 was inconsistent, as six of the seven built-out lots had similar unapproved turnarounds or improvements in setbacks. The HOA later approved the Lot 9 turnaround retroactively during the hearing proceedings.
  • Document Disclosure: HOA President Robert Lewin testified he did not provide the specific documents (Lot 9 submissions) because they did not exist. However, he admitted he failed to provide the meeting minutes discussing the investigative report.

Final Decision and Outcome

The ALJ found that the Petitioners met the burden of proof by a preponderance of the evidence.

The ALJ issued the following key conclusions:

  • Setback Violation: Lot 9 failed to submit the required improvement request, violating the Declaration. However, the ALJ emphasized that the relevant section of the Declaration (Section H) states the ARC "shall have the right to clear such lot," meaning the ultimate action to remedy the lot remains within the HOA’s discretion, not an obligation.
  • Document Disclosure Violation (A.R.S. § 33-1805): The Respondent violated the statute by failing to produce a copy of the meeting minutes discussing the investigative report. Although no Lot 9 application documents existed, the minutes did.

Order: Petitioner's petition was granted. Pursuant to A.R.S. § 32-2199.02(A), the Respondent HOA was ordered to reimburse Petitioner’s filing fee of $1,000.00.

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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”: { “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,

Case Summary

Case ID 23F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-08
Administrative Law Judge Adam D. Stone
Outcome 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.
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

Decision Documents

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-04-24T12:07:40 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-04-24T12:07:50 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-04-24T12:08:00 (117.7 KB)

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)

Case Summary: Jennifer J. Sullivan vs. The Village at Elk Run Homeowners Association, Inc.

This matter (No. 23F-H043-REL) was a contested case before the Office of Administrative Hearings (OAH), heard on July 24, 2023, by Administrative Law Judge (ALJ) Adam D. Stone. Petitioner Jennifer J. Sullivan, a homeowner in The Village at Elk Run Homeowners Association, Inc. (Respondent), challenged a violation notice she received for operating a short-term rental (Airbnb).

Key Facts and Background

Petitioner Sullivan had owned her townhome since 2006 and began renting it on a short-term basis (minimum 3 days) through Airbnb in September 2021. She testified that she had registered for a Transaction Privilege Tax number and was pursuing a license under new city rules, acknowledging that the rental was a business. The Association issued a Courtesy Violation Notice on November 22, 2022, citing a violation of Article 4, Section 4.1 of the community's Covenants, Conditions, and Restrictions (CC&Rs) due to the short-term rental operation.

Main Issues and Arguments

The core legal issue centered on the interpretation of CC&R Section 4.1, titled "Residential Use":

> "All Lots shall be used, improved and devoted exclusively to Single family Residential Use. No gainful occupation, profession, trade or other nonresidential use shall be conducted on any Lot. This Section shall not preclude the Residential Leasing or Renting of a Lot for Month to Month or Longer Terms".

  1. Petitioner's Argument: Sullivan contended that the CC&Rs do not contain an explicit minimum rental period, and therefore, rentals shorter than 30 days are permissible. She argued that Arizona law (ARS 33-1806.01) requires HOAs to list a minimum rental period if they intend to restrict short-term leasing, which the Elk Run CC&Rs failed to do. She asserted that renting a home is considered a residential use.
  1. Respondent's Argument: The Association, represented by Michael McLeran, argued that Section 4.1 must be read in its entirety to uphold the community's character. They asserted that operating a short-term rental for profit (as evidenced by Petitioner's tax licensing) constitutes a "gainful occupation, profession, trade or other nonresidential use," which is prohibited. The final sentence of Section 4.1 allowing "Month to Month or Longer Terms" clarifies the *only* exception where renting for profit is permitted, thereby implicitly prohibiting shorter-term rentals. Testimony from the original CC&R signatory, John Vail, supported the intent for a minimum 30-day rental period.

Outcome and Legal Decision

The ALJ issued a Decision on August 8, 2023, denying the Petitioner's petition.

The ALJ found that Petitioner Sullivan failed to meet her burden of proving that the Association violated relevant statutes or documents. The tribunal concluded that Sullivan was "clearly running a business out of the home".

The ALJ adopted the Respondent's interpretation of Section 4.1: nonresidential use (i.e., operating a rental business for gainful occupation) is *only* permitted if the lots are rented or leased for month to month or longer terms. Thus, the ALJ ruled that, as currently written, any renting or leasing shorter than a month was prohibited.

The Petitioner's request for reimbursement of her $500 filing fee was also denied.

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

Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome 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.
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)

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Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

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23F-H057-REL Decision – 1071115.pdf

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23F-H057-REL Decision – 1071120.pdf

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23F-H057-REL Decision – 1071121.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

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23F-H057-REL Decision – 1071114.pdf

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23F-H057-REL Decision – 1071115.pdf

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23F-H057-REL Decision – 1071120.pdf

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23F-H057-REL Decision – 1071121.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

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This summary concerns the legal case *Wanda Swartling v. Val Vista Park Townhome Association of Mesa*, Docket No. 23F-H057-REL. The evidentiary hearing took place on July 10, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The Petitioner, Wanda Swartling (a property owner and Association member), filed a single-issue petition on or about April 10, 2023. The core allegation was that the Val Vista Park Townhome Association of Mesa (Respondent) violated ARIZ. REV. STAT. § 33-1804 (the open meeting law for planned communities).

The Petitioner contended that the Board of Directors:

  1. Sent a February 7, 2023, email to homeowners informing them of the intent to hold a special meeting and proposing funding options without first holding an open board meeting.
  2. Held a March 2, 2023, special meeting to vote on a special assessment without having held an open board meeting prior to determining the items to be voted upon.

Petitioner argued that the board unilaterally determined which special assessments would be voted on through "closed door board meetings," thereby denying members the opportunity to be present for the decision-making processes. The March 2, 2023, special assessment vote ultimately failed to pass.

Hearing Proceedings and Key Arguments

Respondent (represented by Chad Gallacher, with community manager Steve Cheff testifying) denied the claims. Respondent argued that the claims were factually incorrect and legally insufficient.

Respondent's Legal Defense:

  • There is no legal requirement in ARS § 33-1804 stipulating that an open board meeting must be held before an email is sent to the community or prior to calling a special meeting of the members.
  • The authority to call a special meeting rests with the Board President, as per the association's bylaws (Section 2.2).
  • The issues had been previously discussed: Evidence submitted included meeting minutes showing discussions of capital projects, including painting, roofs, and special assessments, dating back to an Architectural Committee meeting on August 18, 2022, and a subsequent Board meeting on October 11, 2022.

Petitioner’s Burden and ALJ Rulings:

The ALJ emphasized that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated ARS § 33-1804. The ALJ strictly limited the scope of the hearing to the specific violations alleged in the complaint (the process surrounding the February 7th email and March 2nd meeting). Attempts by the Petitioner to introduce evidence demonstrating a *pattern* of closed meetings or to challenge procedural changes related to a prior annual meeting were repeatedly objected to and sustained as irrelevant or beyond the scope of jurisdiction.

Final Decision and Outcome

The ALJ issued a decision on August 1, 2023. The ALJ concluded that the Petitioner failed to meet her burden of proof.

  • The ALJ found that the special assessment voted on March 2, 2023, resulted from maintenance recommendations developed during the August 18, 2022, architectural committee meeting.
  • Regarding claims of informal discussions or emails constituting a violation, the Petitioner failed to provide sufficient evidence that the number of board members involved constituted a quorum necessary to trigger the notice requirement under ARS § 33-1804.

The ALJ ordered that Petitioner’s petition be dismissed and denied the request to levy a civil penalty against the Respondent.

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

Case Summary

Case ID 23F-H040-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-13
Administrative Law Judge Tammy L. Eigenheer
Outcome 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).
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

Decision Documents

23F-H040-REL Decision – 1039237.pdf

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23F-H040-REL Decision – 1053619.pdf

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23F-H040-REL Decision – 1064270.pdf

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23F-H040-REL Decision – 1039237.pdf

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23F-H040-REL Decision – 1053619.pdf

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

23F-H040-REL Decision – 1064270.pdf

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This summary outlines the hearing proceedings, key arguments, and final decision in the matter of *Lisa Kittredge vs. SunBird Golf Resort Homeowners Association* (No. 23F-H040-REL) before the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Lisa Kittredge filed a petition alleging that the SunBird Golf Resort Homeowners Association (HOA) violated governing documents by accepting financial responsibility to maintain drainage features on the privately owned, for-profit SunBird Golf Club.

The immediate action challenged was the HOA Board's December 2022 decision to allocate up to $20,000 from the HOA Contingency funding stream to open, inspect, and clean out specific drainage wells on the golf course, in response to standing water, odors, and mosquito problems affecting the community.

The main legal issue was whether the current governing documents authorized the HOA to use general homeowner assessment funds for maintenance activities on the Golf Course property.

Arguments and Proceedings

The evidentiary hearing was conducted over two days, May 1 and May 15, 2023.

Petitioner's Argument: The Petitioner argued that the expenditure was improper because the governing documents prohibit the use of general assessments for the golf course. She contended that the 1999 CC&Rs/Transition Documents, which generally exempted the HOA from maintaining the Golf Course land, were still relevant or controlling. Crucially, she argued that the 2021 Amendment to the CC&Rs explicitly restricted funding for golf course activities only to monies collected pursuant to Section 6.7(C) (the newly created $300 Capital Improvement Assessment fund for the Golf Course and Community). The Petitioner conceded that had the HOA used funds from the restricted 6.7(C) account, she would not have filed the petition.

Respondent's Argument (HOA): The HOA countered that the 1999 documents were superseded by subsequent documents, including the 2015 CC&Rs and 2021 Amendment, which were approved by residents. The HOA asserted that Section 6.3(A) of the 2015 CC&Rs authorized using assessments for "drainage areas within SunBird," arguing that fixing the drainage was necessary for the "common good" of SunBird residents, whose property values and quality of life were negatively impacted by flooding caused in part by community runoff. The HOA classified the allocation as an unbudgeted emergency expense appropriate for the Contingency Fund.

Legal Focus: The Administrative Law Judge (ALJ) focused strictly on the HOA's governing documents (CC&Rs, Bylaws, Articles of Incorporation, and Rules), excluding the 1999 leases and transition agreements as enforceable governing documents in this venue. The ALJ also found that the Petitioner did not establish that the 1999 CC&Rs were still in effect by a preponderance of the evidence, citing the clear intent of the 2008 and 2015 restatements to be the sole current CC&Rs.

Outcome and Final Decision

The ALJ determined that the Petitioner sustained her burden of proof that the Respondent violated the Association’s governing documents.

Key Legal Finding: The ALJ concluded that the 2021 Amendment was controlling regarding the funding mechanism for the Golf Course. While the 2015 CC&Rs allowed assessments for "drainage areas within SunBird," the 2021 Amendment clearly restricted the use of assessments for the golf course (including recreational facilities) to "only from funds collected pursuant to Section 6.7(C)". Since the HOA decision specified the use of the general HOA Contingency funding stream for the $20,000 project, the expenditure violated the governing documents.

Order: The Petitioner's petition was granted. The Respondent was ordered to reimburse the Petitioner’s filing fee of $500.00 and was further ordered to henceforth comply with the provisions of the governing documents. (3,803 characters)

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

Case Summary

Case ID 23F-H030-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-17
Administrative Law Judge Tammy L. Eigenheer
Outcome 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.
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

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Decision Documents

23F-H030-REL Decision – 1037366.pdf

Uploaded 2026-04-24T12:00:58 (47.2 KB)

23F-H030-REL Decision – 1049922.pdf

Uploaded 2026-04-24T12:01:03 (128.9 KB)

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)

This summary pertains to the hearing in the matter of *Clifford S. Burnes v. Saguaro Crest Homeowners' Association* (No. 23F-H030-REL), held on March 28, 2023, before the Office of Administrative Hearings (OAH).

Key Facts and Background

Petitioner Clifford S. Burnes, a member of the Saguaro Crest Homeowners' Association (HOA), filed a petition alleging that the Respondent HOA violated ARIZ. REV. STAT. § 33-1812(A)(6) during a December 2021 vote concerning the dissolution of the HOA. The Petitioner was represented on his own behalf, and the Respondent HOA was represented by John T. Crotty.

The specific statute at issue, A.R.S. § 33-1812(A)(6), requires that the completed ballot shall contain the name, address, and signature of the person voting, *except* if the community documents permit secret ballots, in which case only the envelope must contain that identifying information.

Main Issues and Arguments

The core dispute was whether the written ballots used by the HOA complied with A.R.S. § 33-1812(A)(6).

  1. Petitioner’s Argument: Mr. Burnes argued that the blank ballot sheet distributed by the HOA did not include spaces for the name, address, or signature of the voter. He maintained that the statute clearly differentiates between the ballot and the envelope. Because the HOA’s governing documents (CC&Rs/Bylaws) did not explicitly permit secret ballots, the full identifying information was legally required to be on the ballot itself.
  1. Respondent’s Argument: The HOA asserted that the ballot and the envelope together constituted the "completed ballot". The envelopes required a signature and contained the lot number (which the HOA used as the address), thereby meeting the statute's requirements when considered as part of a single balloting process. The HOA also argued that the documents were silent on prohibiting secret ballots, implying that they were permitted, or at least that the Petitioner failed to prove they were prohibited. Counsel further argued that the signature could satisfy both the "name" and "signature" requirements, and that lot numbers satisfied the "address" requirement.
  1. Legal Points Emphasized: The Administrative Law Judge focused on the plain language of the statute. The ALJ noted that the statute delineates between the ballot and the envelope and that the three requirements (name, address, and signature) must be given meaning, with the signature being a separate requirement from the name.

Outcome and Decision

The Administrative Law Judge issued a Decision on April 17, 2023, finding that the Petitioner sustained his burden of proof.

  1. Conclusion of Law: A violation of ARIZ. REV. STAT. § 33-1812(A)(6) was established. The ALJ concluded that since the Association’s governing documents did not explicitly permit secret ballots, the completed ballots were required to contain the name, address, and signature of the person voting. Since the actual voting sheet lacked this information, the statute was violated.
  1. Order: The Petitioner's petition was granted.
  • The Respondent HOA was ordered to reimburse the Petitioner's filing fee of $500.00.
  • The Respondent was further ordered to henceforth comply with ARIZ. REV. STAT. § 33-1812(A)(6).

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

Case Summary

Case ID 22F-H2222033-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-08
Administrative Law Judge Adam D. Stone
Outcome 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.
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 2026-04-24T11:47:58 (46.5 KB)

22F-H2222033-REL Decision – 982397.pdf

Uploaded 2026-04-24T11:48:03 (99.3 KB)

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)

The hearing for the case of Roberta J. Stevenson-McDermott vs. Four Palms Homeowners (No. 22F-H2222033-REL) took place on June 27, 2022, before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings.

Key Facts and Main Issues

The dispute arose from the Petitioner’s allegation that the Respondent, Four Palms Homeowners Association (HOA), violated A.R.S. § 33-1258 concerning the disclosure of association financial and other records. Petitioner, a condominium unit owner, sought various financial documents from 2016 to the present, including yearly audit reports, budgets, 1099s, and bank statements, alleging increasing lack of transparency. The Petitioner testified that she had been denied the ability to review official records and that the Treasurer frequently made excuses as to why she could not view them.

Hearing Proceedings and Key Arguments

Petitioner Roberta J. Stevenson-McDermott appeared on her own behalf. She argued that as an owner, she was entitled to copies of these documents, and bank statements should be provided unless HOA and personal funds were co-mingled.

Respondent Four Palms Homeowners, represented by Araceli Rodriguez, Esq., maintained that the HOA had complied with its statutory duties. The Treasurer, Mario Selinas, testified that financial summaries (such as cash flow and income statements generated by the HOA software "Buildium") were provided to Petitioner upon request. Respondent argued that the full bank statements were withheld from distribution due to privacy concerns, specifically the potential for harassment of delinquent unit owners or the accidental disclosure of personal financial records, which is an exception carved out in A.R.S. § 33-1258(B).

Most Important Legal Points

The most critical legal point revolved around the interpretation and application of A.R.S. § 33-1258, which requires that financial records be made available for examination upon a request made in writing. Respondent contended that although the Petitioner had made verbal requests during meetings, she had never submitted a request in writing for the bank statements to the Treasurer. Respondent further noted that the HOA had offered Petitioner the opportunity to *examine* the bank statements in person, as permitted by the statute, but she failed to follow through.

Final Decision and Outcome

The ALJ issued a decision on July 8, 2022, finding that the Petitioner bore the burden of proving a violation by a preponderance of the evidence. The ALJ concluded that the Petitioner failed to establish that she was denied access to the financial records because she had not made the proper written request required by A.R.S. § 33-1258.

The Petitioner’s petition was therefore denied. The ALJ, however, issued a directive that the Respondent is ordered to comply with the requirements of A.R.S. § 33-1258 going forward, contingent upon receiving a proper written request from the Petitioner.

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

Case Summary

Case ID 22F-H2221026-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-29
Administrative Law Judge Velva Moses-Thompson
Outcome 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.
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

Video Overview

Audio Overview

Decision Documents

22F-H2221026-REL Decision – 958497.pdf

Uploaded 2026-04-24T11:42:22 (122.6 KB)

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

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

Uploaded 2026-04-24T11:42:32 (125.2 KB)

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

Uploaded 2026-04-24T11:42:38 (194.1 KB)

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

Uploaded 2026-04-24T11:42:43 (218.4 KB)

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

Uploaded 2026-04-24T11:42:47 (1111.9 KB)

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

Uploaded 2026-04-24T11:42:54 (1303.7 KB)

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

Uploaded 2026-04-24T11:43:00 (223.9 KB)

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

Uploaded 2026-04-24T11:43:09 (1183.8 KB)

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

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

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

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

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

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

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

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

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

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

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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

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

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

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

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

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

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

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

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: 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.

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

Brian D Sopatyk v. Xanadu Lake Resort Condominium, Inc.

Case Summary

Case ID 21F-H2121065-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian D. Sopatyk Counsel Jacob A. Kubert, Esq.
Respondent Xanadu Lake Resort Condominium, Inc. Counsel Penny L. Koepke, Esq.

Alleged Violations

CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)

Outcome Summary

Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.

Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.

Key Issues & Findings

Alleged violation of CC&R Article 2 § 3(a)(2)

The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.

Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 7

Alleged violation of CC&R Article 3 § 3(d)(1)

Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&R Article 3 § 3(d)(1)
  • A.R.S. § 12-548

Alleged violation of CC&R Article 6 § 2(a)

The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).

Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • A.R.S. § 12-548

Analytics Highlights

Topics: HOA Governance, Condominium, CC&R Violation, Assessment Dispute, Architectural Control, Pet Policy, Statute of Limitations Defense
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 12-548
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 3 § 3(d)(1)
  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • CC&R Article 7

Video Overview

Audio Overview

Decision Documents

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-04-24T11:37:41 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-04-24T11:37:47 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-04-24T11:37:55 (100.1 KB)

21F-H2121065-REL Decision – 921823.pdf

Uploaded 2026-04-24T11:38:00 (112.8 KB)

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-01-23T17:39:10 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-01-23T17:39:13 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-01-23T17:39:16 (100.1 KB)

21F-H2121065-REL Decision – 921823.pdf

Uploaded 2026-01-23T17:39:19 (112.8 KB)

This summary outlines the proceedings, arguments, and final decision in the matter of *Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.*, heard before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The Petitioner, Brian D. Sopatyk, a unit owner and member of the Respondent condominium association (Xanadu Lake Resort Condominium, Inc.), filed a triple-issue petition on or about June 29, 2021, alleging violations of the Covenants, Conditions, and Restrictions (CC&Rs). The matter was referred to the OAH for an evidentiary hearing. The hearing took place on September 21, 2021, with Administrative Law Judge (ALJ) Velva Moses-Thompson presiding. The record was held open until October 12, 2021, solely for receiving post-hearing briefs concerning the application of the affirmative defense of the Statute of Limitations. The Arizona Department of Real Estate has jurisdiction over these types of petitions regarding alleged condominium association violations.

Main Issues and Arguments

Petitioner Sopatyk brought three claims, asserting the Respondent violated specific CC&R articles:

  1. Issue 1 (Screen Doors): Whether Respondent violated CC&R Article 2 § 3(a)(2) by directing and authorizing the installation of security screen doors, which are external items generally prohibited. Respondent argued the Architectural Committee had the authority to allow the installations under CC&R Article 7.
  2. Issue 2 (Pets): Whether Respondent violated CC&R Article 3 § 3(d)(1) by barring pets without guidelines. Respondent contended that this CC&R article does not require them to allow pets.
  3. Issue 3 (Marquee Assessment): Whether Respondent violated CC&R Article 6 § 2(a) by levying a $50 monthly fee on commercial units for marquee repair costs. Petitioner argued repairs must be paid out of the reserve fund derived from regular common expenses. Respondent countered that the $50 charge was a rental fee for unit owners advertising on the marquee, not an unauthorized assessment.

The Respondent also raised the affirmative defense that A.R.S. § 12-548 (Statute of Limitations) barred Issues 2 and 3.

Key Legal Points and Final Decision

The ALJ issued a decision on November 1, 2021, relying on the principle that unambiguous restrictive covenants must be enforced to give effect to the intent of the parties.

  1. Statute of Limitations: The ALJ rejected the defense, concluding that A.R.S. § 12-548 is inapplicable because that statute pertains to actions for debt evidenced by a written contract, which the petition was not.
  2. Issue 1 (Screen Doors): Petitioner prevailed. The ALJ concluded that screen doors are absolutely not permitted under CC&R Article 2 § 3(a)(2). CC&R Article 7 granting authority to the Architectural Committee cannot override the clear bar established by Article 2 § 3(a)(2), as doing so would render the prohibition meaningless.
  3. Issue 2 (Pets): Respondent prevailed. The CC&R permits, but does not require, the Board to allow pets. The Petitioner failed to prove by a preponderance of the evidence that the consistent prohibition of pets was arbitrarily or unreasonably applied.
  4. Issue 3 (Marquee Assessment): Petitioner prevailed. The ALJ concluded the marquee is part of the common area. The Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence that the $50 charge complied with the requirements for imposing a special assessment under CC&R Article 6 § 5.

Outcome: The Petitioner was deemed the prevailing party regarding Issues 1 and 3, and the Respondent prevailed regarding Issue 2. The Respondent was ordered to comply with CC&R Article 2 § 3(a)(2) and Article 6 § 2(a) going forward. Respondent was further ordered to pay Petitioner his filing fee of $1,000.00 within thirty days. No civil penalty was imposed.

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

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

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

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

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

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

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

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

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian D. Sopatyk (petitioner)
    Unit Owner
  • Jacob A. Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Penny L. Koepke (respondent attorney)
    Maxwell Morgan PC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk/staff)
    Transmitting agent mentioned in distribution list

Richard E Jewell v. Casa Fiesta Townhouses Corp.

Case Summary

Case ID 22F-H2221005-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard E Jewell Counsel
Respondent Casa Fiesta Townhouses Corp. Counsel Nicole Payne and Carlotta L. Turman

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.

Why this result: Petitioner failed to sustain the burden of proof on the alleged violation.

Key Issues & Findings

Board Member Conflict of Interest Disclosure

Petitioner alleged the HOA violated the statute regarding conflict of interest when the board hired the board president as a paid office assistant and the conflict was not disclosed by the president. The ALJ found that while the president did not disclose the conflict, the conflict was made known by another attendee prior to discussion and action, fulfilling the statutory purpose.

Orders: Petitioner’s petition be dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Analytics Highlights

Topics: HOA governance, Conflict of interest, Statutory interpretation, Board voting
Additional Citations:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

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Video Overview

Audio Overview

Decision Documents

22F-H2221005-REL Decision – 920344.pdf

Uploaded 2026-04-24T11:38:33 (89.3 KB)

22F-H2221005-REL Decision – 920344.pdf

Uploaded 2026-01-23T17:39:53 (89.3 KB)

This summary pertains to the Administrative Law Judge Decision in the case of *Richard E Jewell, Petitioner, vs. Casa Fiesta Townhouses Corp., Respondent* (No. 22F-H2221005-REL), heard on October 7, 2021.

Concise Legal Summary

Key Facts and Issues

Petitioner Richard E. Jewell, a homeowner and member of the Respondent, Casa Fiesta Townhouses Corp. (an Arizona homeowners association or HOA), alleged that the HOA board violated Arizona Revised Statutes (A.R.S.) § 33-1811. The central issue was whether the Board of Directors improperly handled a conflict of interest when voting to hire the sitting Board President, George Pavia, as a salaried office assistant.

The Board voted on July 15, 2021, to employ Mr. Pavia for 40 hours a week at a wage of $15.00 per hour. Petitioner asserted that his only issue was that the Board President failed to personally disclose the conflict of interest prior to the action being taken.

Key Legal Points and Arguments

The relevant statute, A.R.S. § 33-1811, stipulates that if a contract or action for compensation benefits a board member, that member "shall declare a conflict of interest" in an open meeting before discussion or action. A contract entered in violation of this section is void and unenforceable.

During the hearing, the Administrative Law Judge reviewed evidence, including a recording of the July meeting. The evidence showed:

  1. At the outset of the virtual meeting, Mr. Pavia indicated he would recuse himself from the discussion.
  2. An individual attending the meeting raised the possibility of a conflict of interest.
  3. The conflict was discussed at length during the board meeting prior to any vote.
  4. Mr. Pavia refrained from participating in the vote.

The Administrative Law Judge concluded that the purpose of A.R.S. § 33-1811 is to ensure HOA members are aware of conflicts prior to discussion. Interpreting the statute to achieve a "fair and sensible result", the Judge determined that the conflict was, in fact, made known and discussed prior to action. The statute's requirement was satisfied, as the fact that Mr. Pavia was not the individual who disclosed the conflict did not negate that the conflict was discussed at length and known to those voting.

Outcome

At the conclusion of the Petitioner’s presentation of evidence, Respondent moved for a directed verdict, arguing the Petitioner failed to sustain his burden of proof. The motion was granted.

The Administrative Law Judge ruled that the Petitioner failed to establish, by a preponderance of the evidence, that Respondent acted in violation of A.R.S. § 33-1811. The Petitioner’s petition was dismissed.

Questions

Question

Can an HOA board member also be a paid employee of the association?

Short Answer

Yes, provided the conflict of interest is properly declared.

Detailed Answer

A board member can be hired for compensation, but they must declare the conflict of interest in an open meeting before the board discusses or acts on the issue. In this case, the Board President was hired as an office assistant.

Alj Quote

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors . . . , that member of the board of directors shall declare a conflict of interest for that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • board compensation
  • hiring

Question

Does a conflicted board member have to personally announce their own conflict of interest?

Short Answer

Not necessarily, as long as the members are made aware of the conflict.

Detailed Answer

The ALJ ruled that the purpose of the law is to ensure members are aware of conflicts. If the conflict is discussed and known to attendees, it does not matter if the specific board member was not the one to voice the disclosure.

Alj Quote

The purpose of A.R.S. § 33-1811 is to ensure that the members of a homeowners association are aware of all conflicts of interest prior to any discussion… not to require that a specific board member announce to those members that such a conflict of interest exists.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • procedural requirements
  • meetings

Question

Can a board member vote on a contract that benefits them financially?

Short Answer

Yes, after declaring the conflict.

Detailed Answer

State law allows a board member to vote on an issue benefiting them, provided they have declared the conflict in an open meeting before discussion or action is taken.

Alj Quote

The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • conflict of interest
  • board powers

Question

What is the burden of proof for a homeowner filing a complaint against their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (petitioner) is responsible for proving their claim. They must show that their version of events is more likely true than not (the greater weight of the evidence).

Alj Quote

At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

Arizona Administrative Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • administrative hearing

Question

Which specific law covers conflict of interest for HOAs (Planned Communities) versus Condominiums?

Short Answer

A.R.S. § 33-1811 for HOAs; A.R.S. § 33-1243 for Condominiums.

Detailed Answer

It is important to cite the correct statute based on the type of community. The petitioner initially cited the condo statute (§ 33-1243) but had to correct it to the planned community statute (§ 33-1811).

Alj Quote

Petitioner indicated that he erroneously cited to A.R.S. § 33-1243(C) in his petition as that statute relates to condominium associations rather than homeowner associations. Rather, Petitioner should have referenced A.R.S. § 33-1811…

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • statutes
  • jurisdiction
  • legal definitions

Question

Is a contract void if the technical requirements of declaring a conflict weren't perfectly followed?

Short Answer

Likely not, if the conflict was known and discussed.

Detailed Answer

Statutes are interpreted to produce sensible results. If the conflict was discussed at length and everyone was aware, a technical failure (like the wrong person announcing it) may not constitute a violation.

Alj Quote

The fact that Mr. Pavia was not the board member to disclose the conflict does not negate that the conflict was made known prior to any discussion and that the conflict was discussed at length during the board meeting prior to any vote.

Legal Basis

Case Law (Gutierrez v. Industrial Commission)

Topic Tags

  • contract validity
  • statutory interpretation
  • enforcement

Case

Docket No
22F-H2221005-REL
Case Title
Richard E Jewell vs. Casa Fiesta Townhouses Corp.
Decision Date
2021-10-25
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA board member also be a paid employee of the association?

Short Answer

Yes, provided the conflict of interest is properly declared.

Detailed Answer

A board member can be hired for compensation, but they must declare the conflict of interest in an open meeting before the board discusses or acts on the issue. In this case, the Board President was hired as an office assistant.

Alj Quote

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors . . . , that member of the board of directors shall declare a conflict of interest for that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • board compensation
  • hiring

Question

Does a conflicted board member have to personally announce their own conflict of interest?

Short Answer

Not necessarily, as long as the members are made aware of the conflict.

Detailed Answer

The ALJ ruled that the purpose of the law is to ensure members are aware of conflicts. If the conflict is discussed and known to attendees, it does not matter if the specific board member was not the one to voice the disclosure.

Alj Quote

The purpose of A.R.S. § 33-1811 is to ensure that the members of a homeowners association are aware of all conflicts of interest prior to any discussion… not to require that a specific board member announce to those members that such a conflict of interest exists.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • procedural requirements
  • meetings

Question

Can a board member vote on a contract that benefits them financially?

Short Answer

Yes, after declaring the conflict.

Detailed Answer

State law allows a board member to vote on an issue benefiting them, provided they have declared the conflict in an open meeting before discussion or action is taken.

Alj Quote

The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • conflict of interest
  • board powers

Question

What is the burden of proof for a homeowner filing a complaint against their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (petitioner) is responsible for proving their claim. They must show that their version of events is more likely true than not (the greater weight of the evidence).

Alj Quote

At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

Arizona Administrative Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • administrative hearing

Question

Which specific law covers conflict of interest for HOAs (Planned Communities) versus Condominiums?

Short Answer

A.R.S. § 33-1811 for HOAs; A.R.S. § 33-1243 for Condominiums.

Detailed Answer

It is important to cite the correct statute based on the type of community. The petitioner initially cited the condo statute (§ 33-1243) but had to correct it to the planned community statute (§ 33-1811).

Alj Quote

Petitioner indicated that he erroneously cited to A.R.S. § 33-1243(C) in his petition as that statute relates to condominium associations rather than homeowner associations. Rather, Petitioner should have referenced A.R.S. § 33-1811…

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • statutes
  • jurisdiction
  • legal definitions

Question

Is a contract void if the technical requirements of declaring a conflict weren't perfectly followed?

Short Answer

Likely not, if the conflict was known and discussed.

Detailed Answer

Statutes are interpreted to produce sensible results. If the conflict was discussed at length and everyone was aware, a technical failure (like the wrong person announcing it) may not constitute a violation.

Alj Quote

The fact that Mr. Pavia was not the board member to disclose the conflict does not negate that the conflict was made known prior to any discussion and that the conflict was discussed at length during the board meeting prior to any vote.

Legal Basis

Case Law (Gutierrez v. Industrial Commission)

Topic Tags

  • contract validity
  • statutory interpretation
  • enforcement

Case

Docket No
22F-H2221005-REL
Case Title
Richard E Jewell vs. Casa Fiesta Townhouses Corp.
Decision Date
2021-10-25
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard E Jewell (petitioner)
    Jewell Company Inc.

Respondent Side

  • Nicole Payne (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • Carlotta L. Turman (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • George Pavia (HOA board president/employee)
    Casa Fiesta Townhouses Corp.
    Subject of conflict of interest allegation

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

Case Summary

Case ID 21F-H2120020-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-02-02
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sandra Swanson & Robert Barnes Counsel Kristin Roebuck Bethell, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805

Video Overview

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2026-04-24T11:31:09 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2026-04-24T11:31:17 (184.1 KB)

21F-H2120020-REL Decision – 881665.pdf

Uploaded 2026-04-24T11:31:20 (167.3 KB)

Administrative Law Judge Decision: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The final order, issued on February 2, 2022, denied the petition. The ALJ concluded that the Petitioners failed to sustain their burden of proof that a statutory violation occurred. The decision found that the Association’s method of providing the requested documents—redacted ballots in one stack and unredacted envelopes in another—was a “reasonable” approach that balanced the Petitioners’ right to examination with the Association’s duty to protect member privacy. While acknowledging this methodology was “not ideal,” the ALJ determined it made the totality of the requested information “reasonably available” as required by law and was not a violation. The ruling also established that the Association’s initial request for the Petitioners to sign a non-disclosure agreement did not constitute a statutory violation.

Case Overview

Entity

Details

Case Number

21F-H2120020-REL-RHG

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Petitioners

Sandra Swanson & Robert Barnes

Respondent

Circle G Ranches 4 Homeowners Association

Central Allegation

Respondent failed to comply with a January 16, 2020, voting records request, violating ARIZ. REV. STAT. § 33-1805.

Final Order Date

February 2, 2022

Outcome

Petition Denied.

Chronology of Key Events

October 4, 2017: The Association’s Board of Directors adopts the “Rule Requiring Secret Ballots” for votes on special assessments.

October 28, 2019 (approx.): A vote occurs regarding an increase in association dues.

December 2019: A vote occurs regarding a proposed CC&R amendment to prohibit cumulative voting.

January 6, 2020: Petitioners submit a written request to view the votes for the cumulative voting amendment.

January 13, 2020: The Association’s Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots, citing member privacy concerns. Petitioners decline to sign the NDA.

January 16, 2020: Counsel for Petitioners submits a formal written request for all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

January 30, 2020: The Association’s counsel responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners” and that the records will be made available for inspection.

February 7, 2020: Petitioners inspect documents at the office of the Association’s counsel. They are provided with two stacks of documents: redacted ballots and unredacted envelopes. They review the cumulative voting records for approximately 3.5 hours but cannot match specific ballots to specific voter envelopes.

August 5, 2020: Petitioners issue a new demand for “unredacted ballots” and all related documents. No additional documentation is provided.

September 22, 2020: Petitioners file a petition with the Arizona Department of Real Estate, initiating the formal dispute process.

May 17, 2021: An initial ALJ Decision is issued.

June 22, 2021: Petitioners file a request for a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.”

July 15, 2021: The rehearing request is granted.

January 13, 2022: The evidentiary rehearing is held before the OAH.

February 2, 2022: The final ALJ Decision is issued, again denying the Petitioners’ petition.

Central Legal Arguments

The rehearing focused on oral arguments from both parties regarding the interpretation of ARIZ. REV. STAT. § 33-1805, which mandates that association records be made “reasonably available” for member examination.

Petitioners’ Position

Unredacted Records Required: The statute requires the production of unredacted copies of requested documents, and the Association’s failure to provide original, unaltered documents was a violation.

Methodology Impeded Access: By providing redacted ballots and separate unredacted envelopes, the Respondent prevented the Petitioners from cross-referencing votes with voters. This action meant the documents were not made “reasonably available.”

NDA Was an Unlawful Barrier: The Association’s demand for an NDA was not supported by any enumerated exception in the statute and constituted an unlawful barrier to accessing records.

No Expectation of Privacy: Petitioners argued that the ballots were not truly “secret ballots” because some had names or signatures on them, meaning voters “could not have reasonably held an expectation of privacy.”

Respondent’s Position

Statute is Silent on Method: The statute does not specify how records must be made available, only that they must be. Respondent argued it had complied by providing the “totality of records” requested in a timely fashion.

Balancing of Duties: The Association devised a method to satisfy its dual obligations: complying with the records request and protecting its members’ privacy and safety. This concern was heightened by complaints from other homeowners about “harassing” behaviors by the Petitioners.

Information Was Provided: The two sets of documents (redacted ballots, unredacted envelopes) amounted to one complete set of unredacted records, allowing Petitioners to “cross reference and discern the information they sought.”

NDA Was Reasonable: The NDA was proposed to protect member privacy regarding their secret ballot votes. Respondent argued it was ultimately irrelevant to the case, as the records were provided even after Petitioners declined to sign it.

Administrative Law Judge’s Analysis and Final Order

The ALJ’s decision rested on a direct interpretation of ARIZ. REV. STAT. § 33-1805 and a finding that the Petitioners did not meet their evidentiary burden.

Key Rulings and Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Association violated the statute. The ALJ concluded they failed to do so.

2. On the NDA: The Judge explicitly held that “Respondent’s request that Petitioners sign an NDA does not constitute a violation of ARIZ. REV. STAT. § 33-1805.”

3. On Timeliness: The Association’s response on January 30, 2020, to the January 16, 2020, request was within the 10-business-day statutory deadline (which ended January 31, 2020). The Petitioners did not establish that the documents were unavailable for review prior to the February 7 inspection date.

4. On the Method of Disclosure: This was the central finding. The decision states that the manner in which the documents were provided did not violate the statute. The ALJ found that the record reflected that “Petitioners timely received the totality of the documents from their records request(s).” Because there was no evidence that the documents were not made “reasonably available,” a violation could not be concluded.

5. Reasonableness of Association’s Actions: The ALJ offered a final assessment of the Association’s methodology: “While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Final Order

Based on the finding that the Petitioners did not sustain their burden of proof, the final order was unambiguous: “IT IS ORDERED that Petitioners’ petition is denied.”

The order is binding on the parties, who were notified of their right to seek judicial review by filing an appeal with the Superior Court within 35 days from the date of service.

Study Guide: Swanson & Barnes v. Circle G Ranches 4 HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 21F-H2120020-REL-RHG. It is designed to test and reinforce understanding of the key parties, events, arguments, and legal principles outlined in the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, drawing exclusively from the information provided in the case documents.

1. Who are the primary parties involved in this legal dispute, and what are their respective roles?

2. What specific statute did the Petitioners allege the Respondent violated, and what is the core requirement of that statute?

3. What two specific sets of voting records did the Petitioners request from the Association in their January 16, 2020 letter?

4. What action did the Association’s Board of Directors take on January 13, 2020, in response to the Petitioners’ initial request, and what was their stated reason for doing so?

5. Describe the method the Association used to provide the requested voting records to the Petitioners on February 7, 2020.

6. What was the Petitioners’ main argument for why the Association’s method of providing the documents failed to comply with the law?

7. What was the Association’s primary defense for the way it provided the records and for its overall actions?

8. According to the “Conclusions of Law,” who bears the burden of proof in this proceeding, and what is the standard required to meet that burden?

9. What was the Administrative Law Judge’s final conclusion regarding the Association’s request that the Petitioners sign a nondisclosure agreement (NDA)?

10. What was the ultimate outcome of the case as determined by the Administrative Law Judge in the final order issued on February 2, 2022?

——————————————————————————–

Answer Key

1. The primary parties are Sandra Swanson & Robert Barnes, who are the “Petitioners,” and the Circle G Ranches 4 Homeowners Association, which is the “Respondent.” The Petitioners are property owners and members of the Association who filed a complaint against it. The Association is the governing body for the residential development, managed by Vision Community Management, LLC.

2. The Petitioners alleged a violation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805. The core requirement of this statute is that all financial and other records of a homeowners’ association must be made “reasonably available” for examination by any member within ten business days of a request.

3. The January 16, 2020 letter requested all ballots and related documents from the vote regarding the increase in dues that occurred around October 28, 2019. It also requested all written consent forms and ballots for the Proposed Declaration Amendment regarding cumulative voting, which occurred in December 2019.

4. On January 13, 2020, the Board of Directors voted 8 to 1 to require the Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots. Their stated reason was a concern for members’ expectation of privacy regarding non-public information and a fear that members could be harassed based on their votes.

5. The Association provided the Petitioners with two separate stacks of documents. One stack contained redacted ballots, and the other stack contained unredacted envelopes that the ballots had been mailed in. This method separated the vote from the identity of the voter.

6. The Petitioners argued that by providing redacted copies and separate envelopes, the Respondent had not made the documents “reasonably available” as required by statute. They contended this method created an unlawful barrier because they were unable to cross-reference the ballots with the purported voters to verify the vote.

7. The Association defended its actions by arguing that the statute does not specify the how records should be produced, only that they be made available. It contended that it provided the totality of the information requested in a timely manner while also fulfilling its duty to protect the privacy and safety of its members from potential harassment.

8. The Petitioners bear the burden of proving by a “preponderance of the evidence” that the Respondent violated the statute. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge concluded that the Respondent’s request for the Petitioners to sign an NDA did not constitute a violation of ARIZ. REV. STAT. § 33-1805. The judge also noted the NDA was ultimately irrelevant to the outcome because the Association provided the documents even though the Petitioners declined to sign it.

10. The Administrative Law Judge denied the Petitioners’ petition. The judge concluded that the Petitioners did not sustain their burden of proof to show that the Association had committed a violation of ARIZ. REV. STAT. § 33-1805, finding the Association’s actions to be reasonable under the circumstances.

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Essay Questions

The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and arguments from the case documents.

1. Analyze the central legal conflict over the interpretation of the phrase “reasonably available” in ARIZ. REV. STAT. § 33-1805. Contrast the arguments made by the Petitioners and the Respondent, and explain how the Administrative Law Judge ultimately resolved this conflict in the decision.

2. Discuss the competing interests the Circle G Ranches 4 Homeowners Association attempted to balance in its response to the records request. Evaluate the measures it took, including the proposed NDA and the method of document delivery, in light of its duties to both the Petitioners and its general membership.

3. Trace the procedural history of the case from the initial petition filing on September 22, 2020, to the final order on February 2, 2022. What does this timeline reveal about the administrative hearing and appeals process for HOA disputes in Arizona?

4. The Petitioners argued that the ballots in question were not truly “secret ballots” and that voters could not have had a reasonable expectation of privacy. Based on the evidence presented, construct an argument supporting this position and a counter-argument defending the Association’s stance on member privacy.

5. Examine the legal reasoning employed by the Administrative Law Judge in the “Conclusions of Law.” How did principles of statutory construction and the “preponderance of the evidence” standard directly influence the final order denying the Petitioners’ petition?

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Glossary of Key Terms

Definition in the Context of the Document

Administrative Law Judge (ALJ)

The official, in this case Jenna Clark, who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. § 33-1805

The specific Arizona statute at the heart of the dispute, which mandates that a homeowners’ association’s records be made “reasonably available” for member examination within ten business days of a request.

Association / Respondent

The Circle G Ranches 4 Homeowners Association, the governing body for the residential development and the party against whom the petition was filed.

Board of Directors (the Board)

The group that oversees the Association and is responsible for its governance. The Board voted to require an NDA before releasing voting records.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioners) to produce the evidence that will prove the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing documents for the Circle G Ranches 4 Homeowners Association.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings involving homeowners’ associations.

Nondisclosure Agreement (NDA)

A legal contract proposed by the Association’s Board that would have required the Petitioners to keep the voting information confidential. The Petitioners declined to sign it.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers HOA dispute cases for an evidentiary hearing before an Administrative Law Judge.

Petitioners

Sandra Swanson and Robert Barnes, members of the Association who filed the petition alleging a violation of state law by the Association.

Preponderance of the Evidence

The evidentiary standard required for the Petitioners to win their case. It is defined as proof that convinces the judge that a contention is more probably true than not.

Redacted

Edited to remove or black out confidential or private information. The Association provided redacted ballots to the Petitioners to protect member privacy.

Vision Community Management, LLC (Vision)

The management company hired by and acting on behalf of the Association.

Your HOA Can Legally Keep Secrets From You. Here’s How.

Introduction: The Fight for Transparency

As a homeowner in an association, you assume a right to see the records. Transparency, after all, is the bedrock of accountability. But a recent legal dispute in Arizona offers a masterclass in how the gap between a right to information and the reality of obtaining it can be vast. The case demonstrates how a determined HOA, armed with a nuanced legal strategy and a literal interpretation of the law, can fulfill its obligation to provide records while ensuring they reveal almost nothing. It’s a story of escalation that began not with redacted documents, but with a demand for a nondisclosure agreement, setting the stage for a battle over what it truly means for records to be “available.”

1. The Two-Pile Shuffle: How “Access” Doesn’t Always Mean “Answers”

The conflict began with a standard request from a group of homeowners (the Petitioners) to examine their HOA’s voting records. The Board’s response, however, was anything but standard. Citing privacy concerns, the Board voted 8-to-1 on a crucial first move: it would require the homeowners to sign a nondisclosure agreement (NDA) before they could view the ballots. The homeowners refused, creating a standoff.

Forced to provide access but unwilling to yield on its privacy stance, the HOA (the Respondent) devised a clever workaround. When the homeowners arrived to inspect the approximately 122 pages of records, they weren’t handed a coherent set of documents. Instead, after spending roughly three and a half hours sifting through the materials, they discovered they had been given two separate stacks: one containing redacted ballots with the votes visible but the names blacked out, and another containing the unredacted envelopes they arrived in.

This “two-pile shuffle” made it impossible to match a ballot to a voter, effectively neutralizing the homeowners’ ability to verify the vote. They argued that this method failed to make the documents “reasonably available” as required by Arizona statute. The HOA’s strategy proved legally astute, leading to a court case that hinged on the very definition of access.

2. The Privacy Shield: A Proactive Defense

The HOA’s justification for its actions was a proactive and layered defense rooted in protecting its members. The Board’s initial demand for an NDA was not a retroactive excuse, but its opening move, signaling a deep-seated concern that releasing the voting information could lead to conflict within the community.

This concern was not merely abstract. Faced with multiple homeowner complaints labeling the Petitioners’ behavior as “harassing,” the Board first attempted to manage the information release by requiring the nondisclosure agreement. When that failed, it developed the two-pile system. The HOA’s legal position was that it had a duty to balance the homeowners’ request against the “privacy and safety of all Owners.” In a letter, the association’s counsel articulated this position clearly:

The Association’s position is that it has to balance your clients’ requests against the privacy and safety of all Owners within the Association. The Board is concerned with the personal information contained on the written consent forms or other documents and fears that individual members will be retaliated against or harassed based on a member’s decision to support, or not support, the matters up for a decision.

This defense, framed as a duty to protect the community from internal strife, became the cornerstone of the HOA’s successful legal argument.

3. The “Reasonably Available” Loophole

The entire legal battle was ultimately decided by the interpretation of a single phrase in Arizona Revised Statute § 33-1805, which requires an association to make its records “reasonably available.” The case exposed a critical ambiguity in the law.

The Homeowners’ View: They argued that “reasonably available” implies usability. To be meaningful, the records had to be provided in a way that allowed them to cross-reference votes with voters. A deliberately disorganized release, they contended, was not reasonable.

The HOA’s View: The association countered with a brilliant legal distinction: the statute dictates what records must be produced, not how they must be presented. By providing all the components—the ballots and the envelopes—they had fulfilled their duty, even if they were separated.

In a decision that highlights the judiciary’s deference to the literal text of a statute, the Administrative Law Judge sided with the HOA. The judge’s ruling found no violation because, in the end, the homeowners had received everything they asked for. The legal linchpin of the decision was the finding that “the record reflects that Petitioners timely received the totality of the documents from their records request(s).” This interpretation effectively created a loophole, allowing the HOA to comply with the letter of the law while completely withholding the context the homeowners sought.

Conclusion: When “Legal” Isn’t the Whole Story

This case is a stark reminder that a legally defensible action can still feel like an affront to the spirit of community governance. The HOA’s victory demonstrates that in a dispute over transparency, the side with the more precise reading of the law, rather than the more open approach, may prevail. It reveals the profound tension between a homeowner’s right to know, an association’s duty to protect its members from potential harassment, and the powerful ambiguities hidden in legal statutes. An HOA can, with careful legal maneuvering, use privacy as a shield to deliver information in a way that obscures more than it reveals—and do so without breaking the law.

In a community governed by rules, what’s more important: absolute transparency, or the protection of every member’s privacy?

Case Participants

Petitioner Side

  • Sandra Swanson (petitioner)
  • Robert Barnes (petitioner)
  • Kristin Roebuck Bethell (petitioner attorney)
    Horne Siaton, PLLC
    Also listed as Kristin Roebuck, Esq.,

Respondent Side

  • Jeremy Johnson (respondent attorney)
    Joes, Skelton & Hochuli, PLC
  • Samantha Cote (respondent attorney)
    Joes, Skelton & Hochuli, PLC
    Also listed as Sam Cote, Esq.,
  • Patricia Ahler (witness)
    Circle G Ranches 4 Homeowners Association
  • Amanda Stewart (witness)
    Circle G Ranches 4 Homeowners Association
  • Jennifer Amundson (witness)
    Circle G Ranches 4 Homeowners Association
  • Regis Salazar (witness)
    Circle G Ranches 4 Homeowners Association
  • Clint Goodman (HOA attorney)
    Vision Community Management, LLC
    Attorney for Vision, the HOA's property manager,

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner during initial decision phase
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Commissioner during final/rehearing decision phase,
  • Dan Gardner (ADRE Staff)
    Arizona Department of Real Estate
    ADRE contact c/o Commissioner,,