Michael D. Ludden vs Mountain Gate Homeowners Association

Posted on September 23, 2025 by [email protected]

Case Summary

Case ID	25F-H051-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2025-09-23
Administrative Law Judge	Nicole Robinson
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael D. Ludden	Counsel	—
Respondent	Mountain Gate Homeowners Association	Counsel	—

Alleged Violations

CC&Rs Article 1, Definitions, Area of Association Responsibility

Outcome Summary

The Administrative Law Judge granted the petition, concluding that the HOA CC&Rs mandate that the Association is responsible for replacing individual homeowners' roofs, if needed, primarily by interpreting the contractual term 'repair' to encompass 'replacement,' and noting that the roof is explicitly included under the HOA's maintenance and repair duties while items solely the owner's responsibility (windows, doors, interior plumbing) are specifically excluded from Areas of Association Responsibility.

Key Issues & Findings

Areas of Association Responsibility – Association responsibility for roof replacement by the association not clearly specified as to whether or not it’s an association or homeowner responsibility.

Petitioner sought clarification on whether the HOA's CC&Rs mandate roof replacement as part of 'Areas of Association Responsibility.' The ALJ concluded that the term 'repair' includes 'replacement,' and based on the CC&Rs language regarding maintenance and repair of the roof and the specific exclusion of windows and doors, the HOA is responsible for roof replacement if needed.

Orders: Respondent ordered to 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:

ARIZ. REV. STAT. § 32-2199.01
CC&Rs Article 1
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Merriam-Webster dictionary

Analytics Highlights

Topics: HOA Responsibility, Roof Replacement, CC&R Interpretation, Planned Community

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02
CC&Rs Article 1
CC&Rs Article 5.18
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
In re William L., 211 Ariz. 236, 238 (App. 2005)

Audio Overview

Decision Documents

25F-H051-REL Decision – 1323178.pdf

Uploaded 2026-01-23T18:23:58 (68.2 KB)

25F-H051-REL Decision – 1328240.pdf

Uploaded 2026-01-23T18:24:04 (71.7 KB)

25F-H051-REL Decision – 1353423.pdf

Uploaded 2026-01-23T18:24:09 (167.6 KB)

Briefing Doc – 25F-H051-REL

Briefing Document: Ludden v. Mountain Gate Homeowners Association

Executive Summary

This document synthesizes the proceedings and outcome of the legal dispute between petitioner Michael D. Ludden and the Mountain Gate Homeowners Association (HOA) concerning the responsibility for roof replacement. On September 23, 2025, an Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings issued a final decision, ruling conclusively in favor of the petitioner.

The central finding is that the Mountain Gate HOA is financially responsible for the full replacement of homeowner roofs when necessary, in addition to its acknowledged duties of maintenance and repair. The ruling was based on a close interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the CC&Rs’ definition of an “Improvement” (which includes any building or structure) combined with the Association’s explicit obligation to “maintain, repair and replace” such improvements, established the HOA’s liability for roof replacement.

The dispute arose from ambiguous language within the CC&Rs, which was compounded by conflicting verbal and written promises made by both the original and subsequent developers during home sales. The HOA argued that financial impracticality and a 2010 amendment requiring individual homeowner insurance shifted replacement liability to the owners. However, the ALJ’s decision rejected these arguments, finding the language of the governing documents to be controlling. As a direct result of the ruling, the Mountain Gate HOA must reimburse the petitioner’s $500 filing fee and is legally bound to comply with this interpretation of its responsibilities moving forward.

Case Overview

Legal Proceedings

Case Name

In the Matter of: Michael D. Ludden, Petitioner, v. Mountain Gate Homeowners Association, Respondent.

Case Number

25F-H051-REL

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Nicole Robinson, Administrative Law Judge

Hearing Date

September 3, 2025

Decision Date

September 23, 2025

Parties Involved

Title/Position

Petitioner

Michael D. Ludden

Homeowner and HOA President

Petitioner’s Witness

Brenda Anderson

HOA Secretary Treasurer

Respondent Representative

James “Jim” Pieper

HOA Board Member at Large

Respondent’s Witness

Pablo Martinez

HOA Director at Large

Central Issue

The core of the dispute was the interpretation of the Mountain Gate HOA’s CC&Rs to determine whether the Association is financially responsible for the full replacement of homeowner roofs at the end of their service life, or if its obligation is limited solely to maintenance and repair.

Background and Community History

The dispute is rooted in the development history of the Mountain Gate community, which consists of 42 townhome units in Lakeside, Arizona.

• 2006: The community is established and the association is incorporated as a condominium association.

• 2007: Construction begins on the first 12 units under the original developer.

• 2010: The development is re-platted from condominiums to townhomes, becoming a planned community. The CC&Rs are amended (Article 5.18) to require individual owners to obtain comprehensive insurance for the full replacement cost of their dwelling unit.

• c. 2014: The original developer goes bankrupt. Petitioner Michael Ludden purchases his unit from the developer’s sales agent, Gary Laframboise, who verbally stated that roof maintenance and replacement were the HOA’s responsibility.

• 2016: A new developer, Maebee Mountaingate LLC, purchases the remaining lots and resumes construction.

• 2018: The new developer utilizes sales brochures that explicitly promise roof replacement coverage. One document states, “Roofs last 20 years, replacement can cost $9500. In Mountain Gate part of your homeowner’s dues will be there to replace your roof if it is needed.”

• 2021: The new developer commissions a reserve study which includes line items for roof replacement.

• July 2022: With all 42 units completed, control of the HOA is transitioned from the developer to the homeowners. The Association’s reserve fund has a zero balance at the time of turnover.

• 2024: A homeowner demands the HOA replace his roof, prompting the board to seek a legal opinion and bringing the ambiguity in the CC&Rs to the forefront.

• February 28, 2025: Michael Ludden files a petition with the Arizona Department of Real Estate to seek a formal ruling on the matter.

• September 3, 2025: An evidentiary hearing is conducted by the Office of Administrative Hearings.

Arguments Presented at Hearing

Petitioner’s Position (Michael D. Ludden)

The petitioner argued that the HOA is, and has always been represented as being, responsible for roof replacement.

• Governing Documents (CC&Rs): The primary argument centered on Article 1 of the CC&Rs. It defines “Improvements” as “any building, wall or structure” and states the Association “is obligated to maintain, repair and replace” these improvements. The petitioner asserted that a dwelling unit is an “Improvement,” and therefore its roof is subject to replacement by the HOA.

• Developer Representations: Evidence was presented showing consistent promises from both developers.

◦ A text message from the original developer’s agent, Gary Laframboise, dated October 8, 2024, confirmed, “roof maintenance and replacement is HOA responsibility.”

◦ Sales brochures from the second developer, dated 2018, were used to attract buyers with the explicit promise that HOA dues would cover roof replacement.

• Practical Concerns: It was argued that HOA control over replacement is necessary to maintain aesthetic uniformity and structural standards across the community, preventing homeowners from using substandard materials or unapproved colors (a “purple shingle” scenario was cited).

Respondent’s Position (Mountain Gate HOA)

The respondent, represented by board members, argued that roof replacement is the financial responsibility of the individual homeowner.

• Governing Documents (CC&Rs): The respondent focused on a more specific clause within Article 1 that states the Areas of Association Responsibility “shall include the maintenance and repair of: all exterior walls and the roof of any Dwelling Unit.” They contended that the absence of the word “replace” in this specific clause meant the duty did not exist, superseding the more general language.

• Shift in Liability (2010 Amendment): A key argument was that the 2010 re-platting of the community from condominiums to townhomes fundamentally shifted liability. The accompanying amendment requiring owners to carry their own insurance for the “full replacement cost of the Dwelling Unit” was presented as evidence that the replacement responsibility was transferred to the homeowner and their insurer.

• Financial Impracticality: The board stressed the severe financial burden. With annual dues already at $3,318 with no amenities (e.g., pool, clubhouse), adding the cost of roof replacement would require a further increase estimated at $2,000 to $4,000 per year, which would negatively impact property values and make homes difficult to sell.

• Extraneous Documents: The respondent’s position was that sales brochures and verbal promises are not legally binding and cannot override the language of the recorded CC&Rs.

Final Decision and Legal Rationale

The Administrative Law Judge granted the petitioner’s request, finding that the HOA is responsible for replacing homeowner roofs when necessary.

Outcome: PETITION GRANTED.

Judge’s Rationale

The decision was based primarily on an interpretation of the plain language of the CC&Rs.

1. Controlling Language of the CC&Rs: The judge found the broader definition in Article 1 to be controlling. Because an “Improvement” is defined as a “building,” and the Association is obligated to “maintain, repair and replace” such Improvements, the responsibility for roof replacement was established.

2. Definition of “Repair”: The judge cited the Merriam-Webster dictionary definition of “repair” as “to restore by replacing a part or putting together what is torn or broken.” From this, she concluded that “a repair could come through replacement,” further blurring the distinction the respondent tried to make.

3. The Window Hypothetical: The judge used a hypothetical scenario to illustrate the legal reasoning. The CC&Rs state that owners are solely responsible for the “maintenance and repair” of their windows. If a window needed to be replaced, the responsibility would clearly fall on the owner, even though the word “replace” is absent. The judge reasoned the inverse is true for the roof: since the roof is explicitly listed as an Area of Association Responsibility, that responsibility logically includes replacement when a simple repair is insufficient.

4. Rejection of Respondent’s Arguments: The judge determined that the 2010 amendment requiring individual homeowner insurance “still does not relieve the HOA from repairing and maintaining the roof” and, by extension, replacing it under its CC&R-defined duties. The developer’s promises were noted as supportive but were not the primary basis for the decision.

Direct Orders Issued

Based on the findings, the Administrative Law Judge issued the following orders:

1. IT IS ORDERED that Petitioner’s petition be GRANTED.

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

3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents as interpreted in the decision.

Case Participants

Petitioner Side

Michael D. Ludden (petitioner)
Mountain Gate Homeowners Association
HOA President and Property Owner
Brenda Anderson (witness)
Mountain Gate Homeowners Association
HOA Secretary-Treasurer

Respondent Side

James Pieper (respondent)
Mountain Gate Homeowners Association
HOA Director-at-Large
Pablo Martinez (witness)
Mountain Gate Homeowners Association
HOA Director-at-Large
Fzen (board member)
Mountain Gate Homeowners Association
Newest board member, observed hearing

Neutral Parties

Nicole Robinson (ALJ)
OAH
Susan Nicolson (ADRE commissioner)
ADRE
Miranda (OAH staff)
OAH
Mentioned by Petitioner regarding document submission
vnunez (ADRE staff)
ADRE
Recipient of official transmission
djones (ADRE staff)
ADRE
Recipient of official transmission
labril (ADRE staff)
ADRE
Recipient of official transmission
mneat (ADRE staff)
ADRE
Recipient of official transmission
lrecchia (ADRE staff)
ADRE
Recipient of official transmission
gosborn (ADRE staff)
ADRE
Recipient of official transmission

Other Participants

Gary Laframboise (former developer agent)
Original Developer
Provided external statements cited in hearing
Karen Johnson (sales agent)
Navy Construction/Homes Smart
Represented developer Maebee Mountaingate LLC

Marilyn J Fogelsong vs Park Townhouses Homeowners Association, INC

Posted on August 5, 2025 by [email protected]

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

Cited:

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

Cited:

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

Cited:

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

Cited:

ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof

Additional Citations:

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

Uploaded 2026-01-23T18:23:33 (157.7 KB)

25F-H050-REL Decision – 1348020.pdf

Uploaded 2026-01-23T18:23:37 (43.9 KB)

25F-H050-REL Decision – 1380164.pdf

Uploaded 2026-01-23T18:23:41 (51.8 KB)

25F-H050-REL Decision – 1384549.pdf

Uploaded 2026-01-23T18:23:45 (49.0 KB)

25F-H050-REL Decision – 1384804.pdf

Uploaded 2026-01-23T18:23:50 (7.5 KB)

25F-H050-REL Decision – 1393862.pdf

Uploaded 2026-02-12T19:19:32 (59.6 KB)

Briefing Doc – 25F-H050-REL

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

Marilyn J Fogelsong

Posted on August 5, 2025 by [email protected]

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

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.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Cited:

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.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof

Additional Citations:

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

Marilyn J Fogelsong vs Park Townhouses Homeowners Association, INC.

Posted on August 5, 2025 by [email protected]

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

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

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.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Cited:

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.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof

Additional Citations:

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

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

Posted on May 22, 2025 by [email protected]

Case Summary

Case ID	25F-H032-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2025-05-22
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. §§ 33-1812, 33-1803(B-E), 33-1804, 33-1817, and CC&Rs Article VII

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Association was legally permitted to amend its CC&Rs via written, notarized consent of the members under ARIZ. REV. STAT. § 33-1817(A)(1), and that the actions taken did not violate the cited statutes or the governing documents.

Why this result: Petitioner failed to meet the burden of proof; statutory requirements regarding voting (33-1812) and violation notices (33-1803) were inapplicable, and the process of using written consent and closed sessions for legal advice adhered to ARIZ. REV. STAT. §§ 33-1817 and 33-1804.

Key Issues & Findings

Alleged unlawful procedures in replacing CC&Rs

Petitioner alleged the Association violated multiple Arizona Revised Statutes and CC&Rs Article VII by using unlawful procedures to replace the existing CC&Rs. Specific complaints included the Board directing members to sign a notarized agreement without permitting open discussion or dissent on specific proposed changes, arguing that a full vote was required. Respondent argued compliance with ARS § 33-1817 and CC&Rs Article VII, which permits amendment via written consent.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1803(B-E)
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 33-1817
CC&Rs Article VII
ARIZ. REV. STAT. § 10-3704

Analytics Highlights

Topics: HOA, CC&R Amendment, Written Consent, Executive Session, Statutory Interpretation, Planned Community, Filing Fee

Additional Citations:

ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1803(B-E)
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 33-1817
CC&Rs Article VII
ARIZ. REV. STAT. § 10-3704
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1802

Audio Overview

Decision Documents

25F-H032-REL Decision – 1269718.pdf

Uploaded 2026-01-23T18:17:43 (53.7 KB)

25F-H032-REL Decision – 1269742.pdf

Uploaded 2026-01-23T18:17:47 (7.8 KB)

25F-H032-REL Decision – 1274756.pdf

Uploaded 2026-01-23T18:17:51 (54.6 KB)

25F-H032-REL Decision – 1274775.pdf

Uploaded 2026-01-23T18:17:55 (7.9 KB)

25F-H032-REL Decision – 1277633.pdf

Uploaded 2026-01-23T18:18:01 (48.1 KB)

25F-H032-REL Decision – 1288621.pdf

Uploaded 2026-01-23T18:18:08 (51.6 KB)

25F-H032-REL Decision – 1308520.pdf

Uploaded 2026-01-23T18:18:15 (206.1 KB)

Briefing Doc – 25F-H032-REL

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

Executive Summary

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

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

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

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

Case Overview

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

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

Key Parties and Witnesses

Name / Entity

Key Contributions

Anne F. Segal

Petitioner, Homeowner

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

Prince Court Homeowners Association

Respondent

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

Mary Beth Snyder

President, HOA Board

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

Susan Matheson

Vice President, HOA Board

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

David Zinfeld

Witness for Petitioner; Original Developer of Prince Court

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

Dr. Robert Segal

Witness for Petitioner; Husband of Petitioner and Property Manager

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

Wendy Ehrlich, Esq.

Counsel for Respondent

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

Jenna Clark

Administrative Law Judge

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

——————————————————————————–

Central Arguments and Evidence

Petitioner’s Core Allegations

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

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

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

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

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

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

Respondent’s Defense

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

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

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

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

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

——————————————————————————–

Final Adjudication: Administrative Law Judge Decision

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

Findings of Fact

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

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

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

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

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

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

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

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

Conclusions of Law

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

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

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

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

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

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

Study Guide – 25F-H032-REL

{ “case”: { “docket_no”: “25F-H032-REL”, “case_title”: “Anne F. Segal v. Prince Court Homeowners Association, Inc.”, “decision_date”: “2025-05-22”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can an HOA amend its CC&Rs by obtaining written consent from homeowners rather than holding a vote?”, “short_answer”: “Yes, an HOA is permitted to amend CC&Rs by written consent under A.R.S. § 33-1817(A)(1), and voting statutes do not apply to this process.”, “detailed_answer”: “The Administrative Law Judge ruled that the association was permitted to modify its CC&Rs by written consent of its members. Because this process falls under A.R.S. § 33-1817(A)(1), the statutes governing voting (A.R.S. § 33-1812) are considered unrelated and irrelevant to the proceedings.”, “alj_quote”: “It is clear from the record that the Association … was also permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1)… Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant.”, “legal_basis”: “A.R.S. § 33-1817(A)(1)”, “topic_tags”: [ “CC&R Amendments”, “Written Consent”, “Voting Rights” ] }, { “question”: “Does state law override CC&R provisions that restrict when amendments can be made (e.g., only every 10 years)?”, “short_answer”: “Yes, A.R.S. § 33-1817(A)(1) supersedes original CC&R restrictions regarding periodic renewal or specific timelines for amendments.”, “detailed_answer”: “The decision clarifies that state statute supersedes ‘edicts’ in original CC&Rs regarding timing for amendments. Even if the original documents specify a renewal period, the association can amend the documents via the statutory written consent process.”, “alj_quote”: “…permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1); which supersedes any edicts outlined in Article VII of the original CC&Rs.”, “legal_basis”: “A.R.S. § 33-1817(A)(1)”, “topic_tags”: [ “CC&R Amendments”, “State Statute Supremacy”, “Governing Documents” ] }, { “question”: “Can the HOA Board hold a closed executive session to get legal advice if there is no pending lawsuit?”, “short_answer”: “Yes, the Board may meet in executive session to receive legal advice from their attorney, even if it is unrelated to pending litigation.”, “detailed_answer”: “Homeowners often believe legal advice must relate to a lawsuit for a meeting to be closed. However, the ALJ ruled that the Board is permitted to go into executive session to receive legal advice unrelated to pending litigation under A.R.S. § 33-1804(A).”, “alj_quote”: “It is clear from the record that the Association was not only permitted to go into executive session to receive legal advice unrelated to pending litigation from its attorney under ARIZ. REV. STAT. § 33-1804(A)…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Executive Session”, “Legal Advice” ] }, { “question”: “Is the HOA required to hold an open discussion or town hall meeting before amending the CC&Rs?”, “short_answer”: “No, the tribunal found that there is no requirement to permit members to openly deliberate proposed changes for a specific period if the statutory process is followed.”, “detailed_answer”: “The petitioner argued that the HOA was required to permit open deliberation for at least one year. The ALJ disagreed, ruling that the petitioner did not sustain the burden of proof for this contention, implying statutory compliance for written consent is sufficient.”, “alj_quote”: “Specifically, Petitioner contends that Respondent was required to permit Members to openly deliberate proposed changes to the CC&Rs for at least 1 year… the Tribunal is not in agreement with either of Petitioner’s contentions, and holds that she has not sustained her burden of proof in this matter.”, “legal_basis”: “A.R.S. § 33-1817”, “topic_tags”: [ “Procedural Requirements”, “Open Discussion”, “CC&R Amendments” ] }, { “question”: “Do statutes regarding monetary penalties apply to the process of amending CC&Rs?”, “short_answer”: “No, statutes regarding fines and penalties are irrelevant to the amendment process if no actual violation notice was issued or penalty imposed.”, “detailed_answer”: “The ALJ dismissed allegations regarding A.R.S. § 33-1803 (which governs monetary penalties) because they were inapplicable to a dispute centered on the procedural validity of amending CC&Rs where no fines were levied.”, “alj_quote”: “Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant. No violations of these statutes have been established by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 33-1803”, “topic_tags”: [ “Penalties”, “Statutory Application”, “Relevance” ] }, { “question”: “Who bears the burden of proof in a hearing regarding HOA procedural violations?”, “short_answer”: “The petitioner (homeowner) bears the burden of proving the violation by a preponderance of the evidence.”, “detailed_answer”: “In administrative hearings regarding HOA disputes, it is up to the homeowner filing the petition to prove that their allegations are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory and/or governing document violation(s).”, “legal_basis”: “Administrative Procedure”, “topic_tags”: [ “Burden of Proof”, “Legal Procedure” ] } ] }

Blog Post – 25F-H032-REL

Case Participants

Petitioner Side

Anne F. Segal (petitioner)
Appeared on her own behalf.
David Zeinfeld (witness)
Original developer and declarant of the subdivision.
Robert J. Seagull (witness)
Petitioner's husband and property manager.

Respondent Side

Wendy Ehrlich (HOA attorney)
Counsel for Prince Court Homeowners Association, Inc.
Mary Beth Snyder (board member)
Prince Court Homeowners Association, Inc.
President of the Association and witness.
Susan Matheson (board member)
Prince Court Homeowners Association, Inc.
Vice President of the Association and witness.

Neutral Parties

Jenna Clark (ALJ)
OAH
Susan Nicolson (ADRE Commissioner)
ADRE
Dianna Tidle (observer)
vnunez (ADRE staff)
ADRE
djones (ADRE staff)
ADRE
labril (ADRE staff)
ADRE
mneat (ADRE staff)
ADRE
lrecchia (ADRE staff)
ADRE
gosborn (ADRE staff)
ADRE

Thomas P Hommrich v. The Lakewood Community Association

Posted on November 9, 2023 by [email protected]

Case Summary

Case ID	24F-H009-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-11-09
Administrative Law Judge	Brian Del Vecchio
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Thomas P. Hommrich	Counsel	—
Respondent	The Lakewood Community Association	Counsel	Quinten Cupps, Esq.

Alleged Violations

Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).

Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.

Key Issues & Findings

Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy

Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.

Orders: Petitioner's petition was dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community

Additional Citations:

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.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

24F-H009-REL Decision – 1101544.pdf

Uploaded 2026-01-23T18:01:45 (47.0 KB)

24F-H009-REL Decision – 1111460.pdf

Uploaded 2026-01-23T18:01:48 (102.6 KB)

Questions

Question

Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?

Short Answer

Yes, owners or associations may petition the department for hearings concerning violations of community documents.

Detailed Answer

The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.

Alj Quote

The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.

Topic Tags

jurisdiction
dispute resolution

Question

Can an HOA enforce restrictions on public streets or government-owned property within the community?

Short Answer

Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.

Detailed Answer

Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.

Alj Quote

Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'

Legal Basis

CC&Rs Section 2.1

Topic Tags

parking
public streets
authority

Question

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

Short Answer

The Petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

procedural
burden of proof

Question

What standard of evidence is used to decide HOA disputes?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that convinces the judge that the claim is more probably true than not.

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

evidence
legal standard

Question

Can an HOA Board pass a parking policy without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.

Detailed Answer

If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.

Alj Quote

It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.

Legal Basis

CC&Rs Section 5.3

Topic Tags

board authority
rules vs amendments

Question

Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?

Short Answer

Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.

Detailed Answer

Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.

Alj Quote

Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).

Legal Basis

N/A

Topic Tags

legal interpretation
semantics

Question

What happens if a homeowner fails to meet the burden of proof?

Short Answer

The petition will be dismissed.

Detailed Answer

If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.

Alj Quote

The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.

Legal Basis

N/A

Topic Tags

outcome
dismissal

Question

How long does a party have to request a rehearing after an ALJ decision?

Short Answer

30 days.

Detailed Answer

A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

appeal
deadlines

Case

Docket No: 24F-H009-REL
Case Title: Thomas P. Hommrich v The Lakewood Community Association
Decision Date: 2023-11-09
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Questions

Question

Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?

Short Answer

Yes, owners or associations may petition the department for hearings concerning violations of community documents.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.

Topic Tags

jurisdiction
dispute resolution

Question

Can an HOA enforce restrictions on public streets or government-owned property within the community?

Short Answer

Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.

Detailed Answer

Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.

Alj Quote

Legal Basis

CC&Rs Section 2.1

Topic Tags

parking
public streets
authority

Question

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

Short Answer

The Petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

procedural
burden of proof

Question

What standard of evidence is used to decide HOA disputes?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that convinces the judge that the claim is more probably true than not.

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

evidence
legal standard

Question

Can an HOA Board pass a parking policy without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.

Detailed Answer

If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.

Alj Quote

Legal Basis

CC&Rs Section 5.3

Topic Tags

board authority
rules vs amendments

Question

Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?

Short Answer

Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.

Detailed Answer

Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.

Alj Quote

Legal Basis

N/A

Topic Tags

legal interpretation
semantics

Question

What happens if a homeowner fails to meet the burden of proof?

Short Answer

The petition will be dismissed.

Detailed Answer

If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.

Alj Quote

The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.

Legal Basis

N/A

Topic Tags

outcome
dismissal

Question

How long does a party have to request a rehearing after an ALJ decision?

Short Answer

30 days.

Detailed Answer

A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Alj Quote

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

appeal
deadlines

Case

Docket No: 24F-H009-REL
Case Title: Thomas P. Hommrich v The Lakewood Community Association
Decision Date: 2023-11-09
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Thomas P. Hommrich (petitioner)
Property owner, appeared on his own behalf

Respondent Side

Quinten Cupps (HOA attorney)
VIal Fotheringham, LLP
Represented The Lakewood Community Association
Sandra Smith (community manager)
Lakewood Community Association
Witness who testified on behalf of Respondent

Neutral Parties

Brian Del Vecchio (ALJ)
Office of Administrative Hearings
Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Moses Thompson (Judge)
Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)

Other Participants

AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission/contact
vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission/contact
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission/contact
labril (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission/contact
Brian Seatic (party)
Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing

Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners

Posted on October 16, 2023 by [email protected]

Case Summary

Case ID	24F-H001-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-10-16
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Kristeen L. Herron	Counsel	—
Respondent	The Villages at Rancho El Dorado Homeowners Association	Counsel	Lydia Linsmeier

Alleged Violations

CC&Rs Article 4.4

Outcome Summary

The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.

Why this result: Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated CC&Rs Article 4.4. Petitioner's preference for warmer water did not establish discrimination or a rule violation.

Key Issues & Findings

Whether The Villages at Rancho El Dorado Homeowners Association (Respondent) is in violation of CC&Rs Article 4.4 for “turning off the lap pool heater … [f]or approximately one month” which Petitioner further alleges constitutes discrimination against senior residents.

Petitioner alleged the HOA violated CC&Rs Article 4.4 by turning off the lap pool heater around mid-April 2023, making the temperature too cold for her use and constituting discrimination against senior residents who rely on the pool for exercise. The ALJ found Petitioner failed to prove a violation of CC&Rs Article 4.4 or age-based discrimination.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&Rs Article 4.4
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7(e)
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Pool Heating, Discrimination Claim, Common Area Use, Burden of Proof, Planned Community

Additional Citations:

ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-106
ARIZ. ADMIN. CODE R2-19-119
CC&Rs Article 4.4
CC&Rs 8.2(c)(12)
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

24F-H001-REL Decision – 1089588.pdf

Uploaded 2026-01-23T18:00:27 (52.0 KB)

24F-H001-REL Decision – 1102316.pdf

Uploaded 2026-01-23T18:00:31 (136.7 KB)

Study Guide – 24F-H001-REL

{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the 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 a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair 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”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }

Blog Post – 24F-H001-REL

Case Participants

Petitioner Side

Kristeen L. Herron (petitioner)
The Villages at Rancho El Dorado Homeowners Association
Property owner and member of the Association
Karen Ellis (witness)
The Villages at Rancho El Dorado Homeowners Association
Witness for Petitioner; property owner/member
LouAnne Schmidt (observer)
Potential witness for Petitioner, not permitted to testify

Respondent Side

Lydia Linsmeier (HOA attorney)
Carpenter Hazelwood Delgado & Bolen
Eden Cohen (HOA attorney)
Carpenter Hazelwood Delgado & Bolen
April Lord (witness)
City Property Management
Vice President of Management Services
Christiano Monteiro (board member)
The Villages at Rancho El Dorado Homeowners Association
Board President; Testified as witness for Respondent
John Deck (maintenance technician)
The Villages at Rancho El Dorado Homeowners Association
Director of Maintenance
Mark (board member)
The Villages at Rancho El Dorado Homeowners Association
Board member mentioned making a motion
Heather Tiveres (property manager)
City Property Management
Former managing agent employee whose name was clarified in testimony

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate

Harry G. Turner v. MountainGate Home Owners Association, Inc.

Posted on August 15, 2023 by [email protected]

Case Summary

Case ID	23F-H045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-14
Administrative Law Judge	Brian Del Vecchio
Outcome	none
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Harry G. Turner	Counsel	—
Respondent	Mountain Gate Home Owners Association, Inc.	Counsel	—

Alleged Violations

Article 10 Section 4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.

Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.

Key Issues & Findings

Required membership vote for common area use change (Tract H drainage ditch)

Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.

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: respondent_win

Cited:

ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
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, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Analytics Highlights

Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map

Additional Citations:

ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
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, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Video Overview

Audio Overview

https://open.spotify.com/episode/1KAeIyRL8kVCBXnkJx4Gy7

Decision Documents

23F-H045-REL Decision – 1055488.pdf

Uploaded 2026-01-23T17:56:36 (49.7 KB)

23F-H045-REL Decision – 1057334.pdf

Uploaded 2026-01-23T17:56:40 (43.7 KB)

23F-H045-REL Decision – 1083773.pdf

Uploaded 2026-01-23T17:56:42 (105.1 KB)

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

legal standards
procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

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

Preponderance of Evidence

Topic Tags

evidence
legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

document interpretation
common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

jurisdiction
regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

common areas
voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

penalties
remedies

Case

Docket No: 23F-H045-REL
Case Title: Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date: 2023-08-14
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

legal standards
procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

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

Preponderance of Evidence

Topic Tags

evidence
legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

Alj Quote

Legal Basis

Burden of Proof

Topic Tags

document interpretation
common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

Legal Basis

A.R.S. § 32-2199

Topic Tags

jurisdiction
regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

Alj Quote

Legal Basis

CC&R Interpretation

Topic Tags

common areas
voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

penalties
remedies

Case

Docket No: 23F-H045-REL
Case Title: Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date: 2023-08-14
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Harry G. Turner (petitioner)
Appeared on his own behalf

Respondent Side

Michael Luden (president/representative)
Mountain Gate Home Owners Association, Inc.
Appeared on behalf of Respondent. Identified as President of the Homeowners Association
Brenda Anderson (witness/secretary)
Mountain Gate Home Owners Association, Inc.
Witness for Respondent; Secretary of Mountain Gate Homeowners Association
Kelly Callahan (HOA attorney)
HOA's attorney who wrote an email regarding the drainage ditch proposal

Neutral Parties

Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Listed in transmission list
Jeremiah Lloyd (Community Development Director)
Pinetop Lakeside
Community Development Director for Pinetop Lakeside
Bill Best (County Engineer)
Navajo County
Navajo County Engineer
Emory Ellsworth (engineer)
Painted Sky Engineering and Surveying
Engineer consulted by Petitioner
John Murphy (engineer)
Murphy Engineering Group
Engineer whose company provided original certified plans

Other Participants

AHansen (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list
vnunez (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list
djones (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list
labril (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list
Ken Anderson (community member)
Mentioned as being present when a document was allegedly falsified
Gary Lao (developer)
Original developer

Barbara J. Ryan v. Dragoon Mountain Ranch Phase I Meadows Property

Posted on April 17, 2023 by [email protected]

Case Summary

Case ID	23F-H035-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-04-17
Administrative Law Judge	Velva Moses-Thompson
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Barbara J. Ryan	Counsel	—
Respondent	Dragoon Mountain Ranch Phase I Meadows Property Owners Association	Counsel	Jody Corrales, Esq.

Alleged Violations

A.R.S. § 33-1804, A.R.S. § 33-1318, Respondent’s Bylaws sections 7.1, 7.2, 12.1 – 12.3

Outcome Summary

The Petitioner was deemed the prevailing party. The ALJ found the Respondent violated Bylaw section 7.1 by failing to hold an annual members meeting in 2021 and 2022. Respondent was ordered to refund the $500 filing fee and ensure future compliance with Bylaw section 7.1. No civil penalty was imposed.

Why this result: The violation (failure to hold an annual member meeting) was undisputed by the Respondent, and Respondent's counsel conceded there were no legal defenses to this fact.

Key Issues & Findings

Failure to hold an annual members meeting in two years and ignoring members written petitions and requests for a meeting

It was undisputed that the Respondent HOA failed to hold an annual meeting of the members from March 2020 to the time of the hearing. The ALJ found by a preponderance of the evidence that the Respondent violated section 7.1 of its Bylaws.

Orders: Respondent must pay the Petitioner's filing fee of $500.00 within thirty days and is directed to comply with section 7.1 of its Bylaws going forward. No civil penalty was found appropriate.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1804
A.R.S. § 33-1318
Respondent’s Bylaws sections 7.1
Respondent’s Bylaws sections 7.2
Respondent’s Bylaws sections 12.1 – 12.3
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Annual Meeting, Bylaws Violation, Filing Fee Refund, Administrative Hearing, Planned Community

Additional Citations:

A.R.S. § 33-1804
A.R.S. § 33-1318
Respondent’s Bylaws sections 7.1
Respondent’s Bylaws sections 7.2
Respondent’s Bylaws sections 12.1 – 12.3
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09

Video Overview

Audio Overview

https://open.spotify.com/episode/427Jtvhv86O3eSaVHmEQjV

Decision Documents

23F-H035-REL Decision – 1043132.pdf

Uploaded 2026-01-23T17:54:21 (55.9 KB)

23F-H035-REL Decision – 1048244.pdf

Uploaded 2026-01-23T17:54:24 (37.7 KB)

23F-H035-REL Decision – 1049662.pdf

Uploaded 2026-01-23T17:54:28 (18.7 KB)

23F-H035-REL Decision – 1049665.pdf

Uploaded 2026-01-23T17:54:31 (23.9 KB)

23F-H035-REL Decision – 1049666.pdf

Uploaded 2026-01-23T17:54:36 (87.4 KB)

Questions

Question

Can an HOA skip annual member meetings due to ongoing litigation or bankruptcy proceedings?

Short Answer

No. Legal defenses based on external issues like litigation or bankruptcy may not validate the failure to hold meetings required by bylaws.

Detailed Answer

In this case, the HOA attempted to argue that bankruptcy and litigation prevented them from holding meetings. However, the ALJ noted that the Respondent's own counsel eventually admitted there were no legal defenses for failing to hold the meeting, and the failure was ruled a violation.

Alj Quote

Respondent’s counsel stated that there were no legal defenses to Respondent’s failure to hold a board meeting.

Legal Basis

Bylaws Section 7.1

Topic Tags

annual meetings
HOA defenses
bankruptcy

Question

If I include multiple complaints in my petition but only pay the fee for one, will the judge hear all of them?

Short Answer

No. The Administrative Law Judge will likely only address the specific issue for which the filing fee was paid.

Detailed Answer

The petitioner included allegations regarding failure to respond to requests for special meetings and removal of directors, but because she only paid the $500 fee for one issue (failure to hold annual meetings), the other allegations were not addressed in the decision.

Alj Quote

The petition included other allegations including, but not limited to, the Board failure to respond to requests for a special meeting of members and/or a meeting to remove directors from the Board. However, Petitioner has paid for only one issue.

Legal Basis

Procedural Rule

Topic Tags

filing fees
petition scope
administrative procedure

Question

Does the failure to hold an annual meeting automatically invalidate the HOA's corporate actions?

Short Answer

Not necessarily. Bylaws often contain specific provisions stating that the failure to hold a meeting does not affect the validity of corporate actions.

Detailed Answer

The decision cites a specific section of the HOA's bylaws which explicitly states that missing the fixed time for an annual meeting does not invalidate corporate actions.

Alj Quote

The failure to hold an annual or regular meeting at a time stated in or fixed in accordance with the Bylaws does not affect the validity of any corporate action.

Legal Basis

Bylaws Section 7.1

Topic Tags

corporate actions
validity
bylaws

Question

What standard of proof must a homeowner meet to win a hearing against their HOA?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden is on the petitioner to show that their contention is 'more probably true than not.' It is not based on the number of witnesses but on the convincing force of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.

Legal Basis

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

Topic Tags

burden of proof
legal standard
evidence

Question

Can I be reimbursed for my filing fee if I win my case against the HOA?

Short Answer

Yes. The ALJ has the authority to order the HOA to pay the filing fee back to the prevailing homeowner.

Detailed Answer

After ruling in favor of the petitioner regarding the failure to hold meetings, the judge ordered the HOA to pay the petitioner the $500 filing fee within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent Dragoon Mountain Ranch Phase I Meadows Property Owners Association must pay to Petitioner her filing fee of $500.00 within thirty days of receipt of this Order.

Legal Basis

Order of the ALJ

Topic Tags

reimbursement
filing fees
penalties

Question

Will the HOA always be fined a civil penalty if they are found to have violated the bylaws?

Short Answer

No. The judge may decide that a civil penalty is not appropriate even if a violation is found.

Detailed Answer

Although the HOA was found to have violated the bylaws by not holding meetings for two years, the judge explicitly declined to assess a civil penalty in this specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Judicial Discretion

Topic Tags

civil penalty
fines
enforcement

Case

Docket No: 23F-H035-REL
Case Title: Barbara J. Ryan vs Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Decision Date: 2023-04-17
Alj Name: Velva Moses-Thompson
Tribunal: OAH
Agency: ADRE

Questions

Question

Can an HOA skip annual member meetings due to ongoing litigation or bankruptcy proceedings?

Short Answer

No. Legal defenses based on external issues like litigation or bankruptcy may not validate the failure to hold meetings required by bylaws.

Detailed Answer

Alj Quote

Respondent’s counsel stated that there were no legal defenses to Respondent’s failure to hold a board meeting.

Legal Basis

Bylaws Section 7.1

Topic Tags

annual meetings
HOA defenses
bankruptcy

Question

If I include multiple complaints in my petition but only pay the fee for one, will the judge hear all of them?

Short Answer

No. The Administrative Law Judge will likely only address the specific issue for which the filing fee was paid.

Detailed Answer

Alj Quote

Legal Basis

Procedural Rule

Topic Tags

filing fees
petition scope
administrative procedure

Question

Does the failure to hold an annual meeting automatically invalidate the HOA's corporate actions?

Short Answer

Not necessarily. Bylaws often contain specific provisions stating that the failure to hold a meeting does not affect the validity of corporate actions.

Detailed Answer

The decision cites a specific section of the HOA's bylaws which explicitly states that missing the fixed time for an annual meeting does not invalidate corporate actions.

Alj Quote

The failure to hold an annual or regular meeting at a time stated in or fixed in accordance with the Bylaws does not affect the validity of any corporate action.

Legal Basis

Bylaws Section 7.1

Topic Tags

corporate actions
validity
bylaws

Question

What standard of proof must a homeowner meet to win a hearing against their HOA?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden is on the petitioner to show that their contention is 'more probably true than not.' It is not based on the number of witnesses but on the convincing force of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.

Legal Basis

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

Topic Tags

burden of proof
legal standard
evidence

Question

Can I be reimbursed for my filing fee if I win my case against the HOA?

Short Answer

Yes. The ALJ has the authority to order the HOA to pay the filing fee back to the prevailing homeowner.

Detailed Answer

After ruling in favor of the petitioner regarding the failure to hold meetings, the judge ordered the HOA to pay the petitioner the $500 filing fee within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent Dragoon Mountain Ranch Phase I Meadows Property Owners Association must pay to Petitioner her filing fee of $500.00 within thirty days of receipt of this Order.

Legal Basis

Order of the ALJ

Topic Tags

reimbursement
filing fees
penalties

Question

Will the HOA always be fined a civil penalty if they are found to have violated the bylaws?

Short Answer

No. The judge may decide that a civil penalty is not appropriate even if a violation is found.

Detailed Answer

Although the HOA was found to have violated the bylaws by not holding meetings for two years, the judge explicitly declined to assess a civil penalty in this specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Judicial Discretion

Topic Tags

civil penalty
fines
enforcement

Case

Docket No: 23F-H035-REL
Case Title: Barbara J. Ryan vs Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Decision Date: 2023-04-17
Alj Name: Velva Moses-Thompson
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Barbara J. Ryan (petitioner)
Appeared on behalf of herself
Bill Nethery (witness)
Meadows Property Association member
Listed as a witness on Petitioner's petition
Damon Rosen (applicant for board vacancy)
Dragoon Mountain Ranch Phase I Meadows Property Owners Association member
Individual who submitted a resume to serve on the board

Respondent Side

Jody A. Corrales (HOA attorney)
DeConcini McDonald Yetwin & Lacy
Represented the Respondent, Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Dorothy Marine (board member/witness)
Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Director and President of the board; testified at hearing
Cindy Celeste (board member)
Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Director
Jim Kasa (board member)
Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Director

Neutral Parties

Velva Moses-Thompson (ALJ)
OAH
Also introduced herself as Sales Thompson
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
AHansen (ADRE staff)
Arizona Department of Real Estate
vnunez (ADRE staff)
Arizona Department of Real Estate
djones (ADRE staff)
Arizona Department of Real Estate
labril (ADRE staff)
Arizona Department of Real Estate

Other Participants

Gail Olia (former board member)
Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Director who resigned; also referred to as Jill Olia
Sorl Tate (homeowner)
Dragoon Mountain Ranch Phase I Meadows Property Owners Association member
Individual whose prior contentious state court proceeding against the HOA contributed to the bankruptcy

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on April 14, 2023 by [email protected]

Case Summary

Case ID	23F-H033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-04-14
Administrative Law Judge	Sondra J. Vanella
Outcome	none
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Clifford S. Burnes	Counsel	—
Respondent	Saguaro Crest Homeowners' Association	Counsel	John T. Crotty, Esq.

Alleged Violations

Articles of Incorporation, Section XV

Outcome Summary

The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes.

Why this result: Petitioner failed to meet the burden of proof to establish the alleged violation by a preponderance of the evidence.

Key Issues & Findings

Violation of voting requirements for dissolution of the Homeowners Association

Petitioner alleged that the dissolution vote was invalid because the ballots were not signed, and Respondent failed to achieve the 2/3 authorized votes needed, noting only 9 ballots were cast for dissolution. Respondent argued that 11 votes were cast, meeting the 2/3 requirement (10 votes needed), and that signatures on the ballot envelopes satisfied the Article XV requirement for assent given in writing and signed by Owners.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199
ARIZ. REV. STAT. section 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Articles of Incorporation, Voting Rights, Dissolution, Burden of Proof, Planned Community

Additional Citations:

A.R.S. § 32-2199
ARIZ. REV. STAT. section 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)

Video Overview

Audio Overview

Decision Documents

23F-H033-REL Decision – 1035350.pdf

Uploaded 2026-01-23T17:54:11 (55.1 KB)

23F-H033-REL Decision – 1049512.pdf

Uploaded 2026-01-23T17:54:15 (100.5 KB)

Questions

Question

If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?

Short Answer

Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.

Detailed Answer

The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.

Alj Quote

Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

voting
ballots
signatures
governing documents

Question

If I own multiple lots, do I need to submit a separate physical ballot for each lot?

Short Answer

No, unless you can cite specific legal authority or governing documents that require separate physical ballots.

Detailed Answer

The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.

Alj Quote

Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.

Legal Basis

Lack of citation to authority

Topic Tags

voting
multiple lots
ballots

Question

How are votes counted if some homeowners own more than one property?

Short Answer

Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.

Detailed Answer

The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.

Alj Quote

In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

voting
vote counting
authorized votes

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

burden of proof
legal standards
administrative hearing

Question

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

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.

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

Topic Tags

legal definitions
evidence
standard of proof

Case

Docket No: 23F-H033-REL
Case Title: Burnes v. Saguaro Crest Homeowners' Association
Decision Date: 2023-04-14
Alj Name: Sondra J. Vanella
Tribunal: OAH
Agency: ADRE

Questions

Question

If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?

Short Answer

Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.

Detailed Answer

Alj Quote

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

voting
ballots
signatures
governing documents

Question

If I own multiple lots, do I need to submit a separate physical ballot for each lot?

Short Answer

No, unless you can cite specific legal authority or governing documents that require separate physical ballots.

Detailed Answer

Alj Quote

Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.

Legal Basis

Lack of citation to authority

Topic Tags

voting
multiple lots
ballots

Question

How are votes counted if some homeowners own more than one property?

Short Answer

Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.

Detailed Answer

Alj Quote

In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

voting
vote counting
authorized votes

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

burden of proof
legal standards
administrative hearing

Question

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

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.

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

Topic Tags

legal definitions
evidence
standard of proof

Case

Docket No: 23F-H033-REL
Case Title: Burnes v. Saguaro Crest Homeowners' Association
Decision Date: 2023-04-14
Alj Name: Sondra J. Vanella
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Clifford S. Burnes (petitioner)
Also referred to as Clifford (Norm) S. Burnes

Respondent Side

John T. Crotty (HOA attorney)
LAW OFFICES OF COLLIN T. WELCH
Esmeralda Sarina Ayala-Martinez (HOA President, witness)
Saguaro Crest Homeowners' Association
Also referred to as Sarina Martinez or Serena Martinez

Neutral Parties

Sondra J. Vanella (ALJ)
Susan Nicolson (Commissioner)
ADRE
Tammy I (ALJ)
Mentioned as presiding over related case

Other Participants

AHansen (ADRE staff)
ADRE
vnunez (ADRE staff)
ADRE
djones (ADRE staff)
ADRE
labril (ADRE staff)
ADRE