Case Summary
| Case ID | 25F-H050-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2025-08-05 |
| Administrative Law Judge | Nicole Robinson |
| Outcome | loss |
| Filing Fees Refunded | $2,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Marilyn J. Fogelsong | Counsel | — |
|---|---|---|---|
| Respondent | Park Townhouses Homeowners Association, INC. | Counsel | — |
Alleged Violations
ARIZ. REV. STAT. § 33-1811
Paragraph 19 of the CC&Rs
ARIZ. REV. STAT. § 33-1804 (A) and (F)
ARIZ. REV. STAT. § 10-830(A)
Outcome Summary
Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).
Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.
Key Issues & Findings
The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.
Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1811
The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.
The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- Paragraph 19 of the CC&Rs
The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.
Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1804
The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.
Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 10-830
Analytics Highlights
- ARIZ. REV. STAT. § 33-1811
- ARIZ. REV. STAT. § 33-1804
- ARIZ. REV. STAT. § 10-830
- ARIZ. REV. STAT. § 32-2199
- ARIZ. REV. STAT. § 41-1092
- Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
- Declaration of Covenants, Conditions and Restrictions for Park Association
Audio Overview
Decision Documents
25F-H050-REL Decision – 1336348.pdf
25F-H050-REL Decision – 1348020.pdf
25F-H050-REL Decision – 1380164.pdf
25F-H050-REL Decision – 1384549.pdf
25F-H050-REL Decision – 1384804.pdf
25F-H050-REL Decision – 1393862.pdf
Briefing Document: Fogelsong vs. Park Townhouses Homeowners Association (Docket No. 25F-H050-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the legal dispute between Marilyn J. Fogelsong (“Petitioner”) and the Park Townhouses Homeowners Association, Inc. (“Respondent”). The case was adjudicated by the Arizona Office of Administrative Hearings (OAH).
The Petitioner, a co-owner of a unit in the eight-unit Park Townhouses community, filed a petition on or about March 31, 2025, alleging four distinct violations by the HOA board. These allegations included failure to disclose a conflict of interest in hiring an HOA manager, violating the community’s CC&Rs by pursuing projects for individual units, violating state open meeting laws, and failing to act in good faith as fiduciaries.
An evidentiary hearing was conducted on July 16, 2025, before Administrative Law Judge (ALJ) Nicole Robinson. The Respondent did not appear at the hearing, and the Petitioner provided sole testimony.
On August 5, 2025, the ALJ issued a decision denying the Petitioner’s petition in its entirety. The judge concluded that the Petitioner failed to meet her burden of proof by a preponderance of the evidence for three of the four issues. The fourth issue was dismissed on the grounds that the OAH lacked the jurisdiction to enforce the specific statute cited (A.R.S. § 10-830). A subsequent request for a rehearing filed by the Petitioner was rejected by the OAH as it was submitted to the incorrect office after the OAH’s jurisdiction had ended.
Case Overview
Case Number
25F-H050-REL
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Administrative Law Judge
Nicole Robinson
Petitioner
Marilyn J. Fogelsong
Respondent
Park Townhouses Homeowners Association, Inc.
Subject Property
Park Townhouses, an 8-unit planned community in Tucson, AZ
Petition Filed
On or about March 31, 2025
Hearing Date
July 16, 2025
Decision Issued
August 5, 2025
Final Outcome
Petition DENIED
The Parties and Property
• Petitioner Marilyn J. Fogelsong: A partial owner of unit 2467 East 1st Street since April 2021, co-owning with her 39-year-old son who resides in the unit. Fogelsong previously served as the HOA board president for three years, with her last term ending in September 2024.
• Respondent Park Townhouses HOA: A planned community association for an eight-unit townhouse development in Tucson, Arizona. Each unit owner is responsible for their own structure and lot.
• The Property: The community consists of two buildings, each with four townhouses facing each other across a 20-foot wide common driveway.
Petitioner’s Allegations and Testimony
During the July 16, 2025 hearing, Ms. Fogelsong, representing herself, presented testimony on the four issues outlined in her petition. The HOA did not appear.
Issue #1: Conflict of Interest (A.R.S. § 33-1811)
The Petitioner alleged that the HOA failed to disclose conflicts of interest when hiring Tucson Realty & Trust Company (TRT) as the HOA property manager, rendering the contract void.
• Core Allegation: On February 17, 2025, the HOA board presented only one proposal—from TRT—and asked homeowners to approve the hire without disclosing pertinent conflicts.
• Identified Conflicts:
◦ TRT’s property management division manages two units within the community (2463 and 2467) owned by then-current board members Mark Schlang (Treasurer) and Gerald Schwarzenb[erger] (Secretary).
◦ Both the property management and HOA management divisions of TRT operate under the same broker, Deborah Garcia.
• History of Misconduct by TRT: The Petitioner testified to a history of issues with TRT that she believed constituted conflicts of interest:
◦ TRT collected parking violation fines from a tenant but failed to remit them to the HOA.
◦ TRT failed to provide tenant contact information to the HOA upon request, which is a violation of Arizona law.
◦ TRT’s attorney, BL Edmonson, sent a “cease and desist” letter to Fogelsong and then invoiced the HOA for the legal fees, which Fogelsong, as president at the time, rejected. The invoice was resubmitted to the HOA 18 months later.
Issue #2: CC&R Violation (Paragraph 19)
The Petitioner alleged the HOA violated Paragraph 19 of the Covenants, Conditions, and Restrictions (CC&Rs) by directing the HOA manager to pursue an “unsanctioned project for individual townhouses.”
• Core Allegation: The HOA manager (TRT) met with a painting company on March 31, 2025, to solicit bids for painting the exteriors of all townhouses. The Petitioner argued this action is beyond the scope of the HOA’s authority, which is limited to maintaining common areas.
• Supporting Evidence:
◦ The Petitioner cited a legal opinion she obtained from an HOA attorney, Jason Smith, which concluded that the HOA does not have the right to conduct repairs on individual units.
◦ She referenced a past incident where another homeowner, David Zinfeld, paid an assessment for awning wood repair “under protest” because the funds were being used for an individual unit, not a common area.
Issue #3: Open Meeting Law Violations (A.R.S. § 33-1804)
The Petitioner claimed the board violated Arizona’s open meeting laws through multiple actions.
• Secret Meeting: The board held a private meeting to approve TRT as the manager before the February 17, 2025, homeowners meeting where the vote occurred. No notice of this prior board meeting was given to homeowners.
• Failure to Provide Information: The Petitioner made multiple requests for documents that were ignored. She requested management proposals on February 4, 2025, and later requested minutes, financial statements, and property management agreements, none of which were provided.
• Disregarded Standing: In its written response to the petition, the HOA claimed the Petitioner lacked “sufficient standing” due to her “limited ownership stake,” a position the Petitioner refutes based on her recorded deed.
Issue #4: Failure to Act in Good Faith (A.R.S. § 10-830A)
The Petitioner alleged the board failed to perform its duties with the care an “ordinarily prudent person” would exercise.
• Dereliction of Duties:
◦ The board, elected in September 2024, waited 10 weeks to meet and elect officers.
◦ The board failed to take control of the HOA bank account until March 2025, approximately six months into its one-year term.
◦ It failed to schedule a required annual backflow test for the irrigation system, resulting in the water being shut off.
◦ It failed to replace a dead tree that was on the agenda for replacement in fall 2024.
◦ It failed to check the HOA’s post office box, leading to the return of dues checks from homeowners.
◦ It did not abate new graffiti for six weeks, at which point the Petitioner did so herself after receiving permission.
Respondent’s Position
Although the HOA was not present at the hearing, its positions were articulated in a five-page written response submitted to the Department of Real Estate on May 8, 2025, and were referenced during the hearing.
• Denial of Claims: The Respondent denied all of the Petitioner’s claims.
• Challenge to Standing: The HOA’s formal position was that Ms. Fogelsong lacked sufficient standing due to her “limited ownership stake.”
• Allegation of Ulterior Motive: The Respondent accused the Petitioner of a “calculated and systematic attempt to devalue the property and agitate the owners to possibly sell their respective units to Miss Fogong [sic] and her son at a below market value.” They claimed several owners could testify to her “repeated suggestions and solicitations to sell.”
• Claim of Non-cooperation: The HOA stated that the Petitioner had “not been fully cooperative in the transition process” regarding missing documentation after her term as president ended.
Administrative Law Judge’s Decision
On August 5, 2025, ALJ Nicole Robinson issued a decision denying the petition. The core finding was that the Petitioner failed to meet her burden of proving the violations by a preponderance of the evidence.
Findings on Each Issue
• Issue #1 (Conflict of Interest): No Violation Found. The ALJ concluded that the Petitioner failed to prove the hiring of TRT constituted a conflict of interest as defined by A.R.S. § 33-1811. The evidence showed that a prior management company (McElwain) also managed individual units while serving as the HOA manager, suggesting this was an established practice. The statute specifically addresses benefits to board members or their families, which was not sufficiently established by the evidence presented.
• Issue #2 (CC&R Violation): No Violation Found. The decision stated that the Petitioner failed to submit the entirety of the CC&Rs and Bylaws, providing only “snippets.” Without the complete governing documents, the tribunal could not definitively determine the scope of the HOA’s authority regarding projects on individual units. Furthermore, the evidence only showed that a bid was solicited for painting; there was no evidence that work was actually performed.
• Issue #3 (Open Meeting Law): No Violation Found. The ALJ found that the February 17, 2025, meeting was properly noticed via email. Regarding a March 5, 2025, email the Petitioner did not receive, the evidence showed her co-owner son did receive it, meaning the unit was properly notified. A December 2024 meeting was deemed emergent, for which the statute does not require prior notice.
• Issue #4 (Failure to Act in Good Faith): No Jurisdiction. The ALJ concluded that the Office of Administrative Hearings lacks jurisdiction to enforce A.R.S. § 10-830. The OAH’s authority is limited by statute to adjudicating violations of Title 33 (Planned Communities and Condominiums) and community documents, not Title 10 (Corporations and Associations).
Post-Decision Events
• On August 26, 2025, the Petitioner filed a request for a rehearing.
• On September 8, 2025, the OAH issued a Minute Entry stating that the request would not be considered because it was “inappropriately sent to the Office of Administrative Hearings.”
• The OAH’s jurisdiction over the matter had concluded with the August 5 decision. The Petitioner was advised to address any further requests to the Arizona Department of Real Estate.
Case Participants
Petitioner Side
- Marilyn J. Fogelsong (petitioner)
Park Townhouses HOA
Represented herself; former HOA President/Treasurer - Levi Benjamin Lazarus (co-owner/son of petitioner)
Park Townhouses HOA
Co-owner of petitioner's unit - Jason Smith (HOA attorney)
Consulted by petitioner regarding CC&R interpretation for unit repairs
Respondent Side
- Gerald Schwarzenb (board member/Secretary)
Park Townhouses HOA
Current HOA board member; his unit managed by TRT - Mark Schlang (board member/Treasurer/architect)
Park Townhouses HOA
Current HOA board member; his unit managed by TRT - Deborah Garcia (broker/HOA manager)
TRT Property Management
Broker of TRT; homeowners voted to accept her as HOA manager - Andrew Viscara (HOA property manager)
TRT Property Management
TRT representative designated for Park Townhouses HOA management - Mary Lord Lr (property manager)
TRT Property Management
Property manager for unit 2465 - B.L. Edmonson (attorney)
TRT Property Management
Wrote cease and desist letter to petitioner; billed HOA
Neutral Parties
- Nicole Robinson (ALJ)
OAH - Susan Nicolson (Commissioner)
ADRE
Other Participants
- David Zinfeld (homeowner/former Treasurer)
Park Townhouses HOA
Property owner; prior treasurer during self-managed period; paid assessment under protest - Ray Floyd (former board member)
Park Townhouses HOA
Served on board with petitioner during self-managed period - Sasha Flores (bank account signer)
Park Townhouses HOA
Wife of Rick Flores; co-signer on HOA bank account - Rick Flores (homeowner/delegate)
Park Townhouses HOA
Delegated authority to wife Sasha Flores for bank account deeds
