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Magnus LD MacLeod v. Mogollon Airpark, Inc. (ROOT)

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Case Summary

Case ID No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-28
Administrative Law Judge Kay Abramsohn
Outcome Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Magnus L.D. MacLeod Counsel Jeffrey M. Proper, Esq.
Respondent Mogollon Airpark, Inc. Counsel Gregory A. Stein, Esq.

Alleged Violations

A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b)

Outcome Summary

Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.

Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.

Key Issues & Findings

Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)

Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).

Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1817(A)(1)
  • A.R.S. § 33-1817(A)(2)
  • A.R.S. § 33-1817(A)(2)(a)
  • A.R.S. § 33-1817(A)(2)(b)

Analytics Highlights

Topics: HOA Amendment Validity, Planned Community, Homeowner Violation, Full-Time Residency, Hangar Home, Statutory Interpretation 33-1817, Cross-Petitions, Filing Fee Bear Own Costs
Additional Citations:

  • A.R.S. 33-1801 et seq.
  • A.R.S. § 33-1817(A)(1)
  • A.R.S. § 33-1817(A)(2)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

20F-H2019019-REL Decision – 810246.pdf

Uploaded 2026-04-24T11:23:53 (188.3 KB)

Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.

Executive Summary

This briefing document outlines the findings and decision of an Administrative Law Judge (ALJ) in the cross-petitions between Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP). The central dispute revolves around the validity of a 2018 Amendment to the community’s Declaration and MacLeod’s alleged violation of this Amendment by residing full-time in an aircraft hangar.

MacLeod (Petition #19) contended that the Amendment was invalid because it was not unanimously approved by all lot owners, as he argued was required by Arizona statute A.R.S. § 33-1817(A)(2) since it applied to fewer than all properties. MAP (Petition #34) argued the Amendment was properly adopted with the required 75% approval and that MacLeod was in violation by living in his Tract G hangar, which also allegedly failed to meet the minimum living space requirement.

The ALJ ruled decisively in favor of Mogollon Airpark, Inc., deeming it the prevailing party. The judge concluded that the Amendment was properly adopted under the 75% approval threshold outlined in the community’s Declaration and A.R.S. § 33-1817(A)(1), thereby dismissing MacLeod’s petition. On MAP’s petition, the ALJ found that MacLeod had indeed violated the Amendment by living full-time in the hangar, affirming that part of the petition. However, the ALJ dismissed MAP’s claim regarding the hangar’s living space size due to insufficient evidence. The final order dismisses Petition #19, partially affirms and partially dismisses Petition #34, and orders each party to bear their own filing fees.

Case Overview

Case Numbers

No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL

Parties

Petitioner: Magnus L.D. MacLeod
Respondent: Mogollon Airpark, Inc. (MAP)

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings

Administrative Law Judge

Kay Abramsohn

Hearing Date

June 19, 2020

Decision Date

July 28, 2020

The Cross-Petitions

The legal conflict originated from two separate petitions filed with the Arizona Department of Real Estate.

Petition #19: Filed by Magnus L.D. MacLeod

• Filing Date: On or about October 15, 2019.

• Core Allegation: MAP violated Arizona statute A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b) in its adoption of the October 18, 2018 “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…”

• MacLeod’s Argument: The Amendment could not be enforced because it lacked the affirmative vote or written consent of all owners of the property to which it applied. He specifically noted that three of the nine Real Property Tracts (Tract G, Tract H, and Tract M) did not provide an affirmative vote and that he personally did not sign it. He argued the amendment required unanimous approval.

Petition #34: Filed by Mogollon Airpark, Inc. (MAP)

• Filing Date: On or about December 16, 2019.

• Core Allegations:

1. Violation of the Amendment: MacLeod was in continued violation of the properly adopted Amendment by living full-time in his Tract G aircraft storage hangar.

2. Violation of Square Footage Requirement: MAP alleged, upon information and belief, that the living space in the hangar was “only 549 square feet,” which violated the Declaration’s requirement that structures for living purposes contain no less than 1,200 square feet.

• Requested Relief: MAP sought enforcement of the Declaration and Amendment, including injunctive relief to compel MacLeod’s compliance, and an award of its attorney’s fees and costs.

Analysis of the Disputed Amendment

The conflict centers on an amendment recorded on October 18, 2018. This amendment introduced several significant changes to the community’s governing documents.

Key Provisions of the Amendment

• Creates Two Lot Categories: The Amendment establishes “Residential lots” (lots #178 through #213) and “Hangar Tracts” (Tracts E through M).

• Regulates Hangar Use: It designates Tracts E through M for the purpose of “aircraft storage only.”

• Restricts Occupancy: While guest quarters may be constructed within a hangar, they are for “temporary living only.” “Temporary” is explicitly defined as “not longer than four months per calendar year.” An owner can request an extension in special circumstances.

• Maintains Living Space Requirement: It affirms that any single-family structure or combination hangar/house must have a living area of “not less than 1,200 square feet.”

• Adds Taxiway Access: The Amendment adds Lot 213 to the list of properties authorized to use the aircraft taxiway. This change was necessitated by a fence MacLeod had erected that blocked the Lot 213 owner’s access.

MacLeod’s Objections to the Amendment

In his petition, MacLeod argued the Amendment fundamentally and unreasonably altered the original covenants:

• It “substantially alters” the covenants for Tract Hangar/Homes by imposing the new four-month temporary living limit where unrestricted usage was previously allowed.

• It replaced the allowance for “Guest Homes with Kitchens” with “Guest Quarters without Kitchens,” impacting Tract G.

• It created a “large burden upon me to buy or build an additional home that I do not want and do not need.”

Background and History of the Dispute

• Property Acquisition: MacLeod purchased Tract G from his brother, Pat MacLeod, in February 2017 with the stated expectation of living in the hangar/home full-time.

• Occupancy: After acquiring the property, MacLeod made interior improvements and began living full-time in the aircraft hangar.

• Conflict Origin: The issue of MacLeod’s full-time residency first arose in May 2017 when he requested to build a group home for disabled veterans, a request that drew opposition from other lot owners.

• Initial Violation Notice: On September 18, 2017, MAP’s Architectural Committee sent MacLeod a letter notifying him that living full-time in a hangar intended for aircraft storage was a violation and requested he vacate within 60 days.

• Formal Non-Compliance Notices & Fines:

◦ December 29, 2018: MAP issued a “First Notice of Non-Compliance,” imposing a $100 fine.

◦ April 29, 2019: MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.

Legal Framework and Adjudicated Issues

The central legal question was the standard of approval required to pass the Amendment. The parties stipulated that the core dispute was whether a 75% approval or a unanimous approval was necessary.

Stipulated Fact #11

The parties agreed to the following crucial point, which narrowed the scope of the legal argument:

“The AMENDMENT contains at least the required minimum signatures and authorizations from the Lot Owners in Unit IVB to adopt the AMENDMENT, provided that unanimous approval of all affected property owners was not required.”

Conflicting Legal Standards

• Declaration Requirement (75% Rule): The original Declaration states it can be amended “by an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision…”

• Arizona Statute (Unanimous Rule): A.R.S. § 33-1817(A)(2) requires unanimous “affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies” if the amendment “apply to fewer than all of the lots or less than all of the property that is bound by the Declaration.”

Parties’ Core Arguments

• MacLeod’s Position: The Amendment required unanimous approval under A.R.S. § 33-1817(A)(2) because it applied to “fewer than all the lots,” specifically pointing out that Tract B (a common area) was not included.

• MAP’s Position: The 75% rule under A.R.S. § 33-1817(A)(1) was the applicable standard. MAP argued that Tract B was a common area not subject to the Declaration’s conditions, so its exclusion from an amendment concerning residential use was irrelevant and did not trigger the unanimity requirement.

Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions systematically addressed each petition.

Ruling on Petition #19 (Amendment Validity)

• Conclusion: The Amendment was properly adopted.

• Rationale: The ALJ concluded that the 75% approval threshold, as specified in the Declaration and permitted by A.R.S. § 33-1817(A)(1), was the correct standard. Because the parties stipulated that the 75% threshold had been met, MAP was not in violation of the statute.

• Outcome: Petition #19 was dismissed.

Ruling on Petition #34 (MacLeod’s Violations)

• Conclusion on Full-Time Occupancy: MacLeod was in violation of the Amendment by living full-time in the Tract G Hangar/Home.

• Rationale: MacLeod acknowledged living there full-time. His testimony regarding when he ceased this practice was found to be “widely inconsistent,” and the ALJ could not conclude that the violation had stopped by the time MAP filed its petition.

• Outcome: This allegation in Petition #34 was affirmed.

• Conclusion on Living Space Requirement: MAP failed to prove its allegation that the living space was less than the required 1,200 square feet.

• Rationale: MAP did not clearly document or otherwise prove its claim that the living space was only 549 square feet. MacLeod, in contrast, cited a 2007 architectural committee sign-off indicating 1,656 square feet.

• Outcome: This allegation in Petition #34 was dismissed.

• Conclusion on Injunctive Relief: The Tribunal lacked the authority to grant the requested relief.

• Rationale: MAP “cited no statutory authority of this Tribunal with regard to ‘enforcement’ of a homeowner’s association governing documents or with regard to any injunctive relief.”

Final Order

1. Prevailing Party: Mogollon Airpark, Inc. (MAP) is deemed the prevailing party in the cross-petitions.

2. Petition #19 (MacLeod v. MAP): Dismissed.

3. Petition #34 (MAP v. MacLeod):

◦ Partially affirmed as to the allegation of MacLeod living full-time in the Tract G Hangar/Home in violation of the Amendment.

◦ Partially dismissed as to the allegation regarding the amount of living space within the hangar.

4. Filing Fees: Each party shall bear their own filing fee.

Study Guide: MacLeod v. Mogollon Airpark, Inc.

Short-Answer Quiz

1. What were the two primary allegations made by Mogollon Airpark, Inc. (MAP) in its petition (Petition #34) against Magnus L.D. MacLeod?

2. What was the core argument presented by Magnus L.D. MacLeod in his petition (Petition #19) regarding the October 18, 2018 Amendment?

3. According to the original Declaration, what was the minimum approval threshold required to amend it?

4. How did the Amendment of October 18, 2018 change the rules regarding residency in Hangar Tracts like Tract G?

5. What was the central legal question that the parties stipulated to regarding the adoption of the Amendment?

6. Describe the two notices that MAP issued to MacLeod prior to filing its petition.

7. What argument did MacLeod make regarding A.R.S. § 33-1817(A)(2) and why he believed the Amendment required unanimous approval?

8. Why was MAP’s allegation regarding the living space in MacLeod’s Tract G hangar (that it was only 549 sq. ft.) dismissed by the Administrative Law Judge?

9. What was MacLeod’s testimony regarding his occupancy of the Tract G hangar, and how did the Administrative Law Judge view this testimony?

10. What was the final order of the Administrative Law Judge regarding Petition #19 and Petition #34, and which party was deemed the prevailing party?

Answer Key

1. In Petition #34, MAP first alleged that MacLeod was in continued violation of the Amendment by living full-time in his Tract G aircraft storage hangar. Second, MAP requested enforcement of the Declaration and Amendment, seeking injunctive relief and an award of its attorney’s fees and costs.

2. MacLeod’s petition alleged that the Amendment was unenforceable because it was not properly adopted pursuant to A.R.S. § 33-1817. He argued it did not receive the affirmative vote or written consent of all owners of the property to which the amendment applied, specifically noting that owners of three of the nine affected tracts (G, H, and M) did not consent.

3. The original Declaration stipulated that it could be amended by “an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision.” This represents a 75% approval threshold.

4. The Amendment established that guest quarters in aircraft storage hangars (Tracts E through M) were for “temporary living only,” which was defined as “not longer than four months per calendar year.” It also specified that such quarters could not be used as a permanent residence.

5. The parties stipulated that the central dispute was whether the Amendment required 75% approval from lot owners as specified in the Declaration, or if it required unanimous approval from all affected property owners pursuant to A.R.S. § 33-1817(A)(2).

6. On December 29, 2018, MAP issued a “First Notice of Non-Compliance” with a $100 fine for living full-time in the hangar. On April 29, 2019, MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.

7. MacLeod argued that pursuant to A.R.S. § 33-1817(A)(2), unanimous approval was required because the Amendment applied to fewer than all the lots bound by the Declaration. He specifically pointed out that Tract B, a common area, was not included in the Amendment.

8. The Administrative Law Judge dismissed this part of MAP’s petition because MAP failed to clearly document or prove its allegation. The judge concluded that MAP did not sufficiently demonstrate that the living space within the Tract G Hangar/Home was less than the required 1,200 square feet.

9. MacLeod gave widely inconsistent dates for his full-time occupancy of the hangar and testified that he had moved to Concho in January 2019. The Administrative Law Judge found his testimony inconsistent and could not conclude that MacLeod had stopped living in the hangar at the time Petition #34 was filed.

10. The judge ordered that MacLeod’s Petition #19 be dismissed entirely. The judge partially dismissed MAP’s Petition #34 regarding the living space allegation but affirmed the allegation that MacLeod was living in the hangar in violation of the Amendment. MAP was deemed the prevailing party in the cross-petitions.

Essay Questions

1. Analyze the conflicting interpretations of A.R.S. § 33-1817 presented by Magnus L.D. MacLeod and Mogollon Airpark, Inc. Explain why the Administrative Law Judge ultimately sided with MAP’s interpretation that A.R.S. § 33-1817(A)(1) was the applicable statute.

2. Trace the timeline of the dispute, starting with MacLeod’s purchase of Tract G and his proposal for a group home. Discuss how the actions and reactions of both parties escalated the conflict, leading to the filing of cross-petitions with the Department of Real Estate.

3. Evaluate the evidence presented by both parties. How did the parties’ joint stipulation of facts narrow the central legal issue? Discuss the impact of MacLeod’s inconsistent testimony on the judge’s final decision regarding his residency.

4. MacLeod argued that MAP had waived its right to enforce the Amendment due to “longstanding and widespread utilization of Tract Hanger/Homes as full-time residences.” Although the Judge did not address this argument due to jurisdictional limits, construct an argument for or against this claim based on the facts available in the decision.

5. Discuss the scope and limitations of the Administrative Law Judge’s authority in this case. Why was the Judge able to rule on the validity of the Amendment’s adoption and MacLeod’s violation, but not grant MAP’s request for injunctive relief and enforcement?

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The judicial authority, Kay Abramsohn, who presided over the hearing and issued the decision in this case.

A.R.S. § 33-1817

Arizona Revised Statute governing the amendment of a planned community’s Declaration. Subsection (A)(1) allows amendment by the vote specified in the Declaration, while (A)(2) requires unanimous consent of affected owners if the amendment applies to fewer than all lots.

Amendment

The “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…” recorded on October 18, 2018. It created categories for Residential and Hangar lots and restricted hangar occupancy to temporary living of no more than four months per year.

A colloquial acronym used by the Petitioner to refer to the original “Declaration of Establishment of Conditions, Reservations and Restrictions and Mutual and Reciprocal Covenants and Liens Running with the Land.”

Declaration

The original governing document for Mogollon Airpark, Inc., establishing conditions, reservations, and restrictions for the properties. It required a three-fourths (75%) vote of lot owners to be amended.

Hangar Tracts

Tracts E through M, inclusive, as designated by the Amendment for the primary purpose of aircraft storage, though guest quarters for temporary living are permitted.

Magnus L.D. MacLeod

The Petitioner in Petition #19 and Respondent in Petition #34. He is the owner of Tract G and resided in the hangar on that property.

Mogollon Airpark, Inc. (MAP)

The Respondent in Petition #19 and Petitioner in Petition #34. It is the planned community association responsible for administering the Declaration.

Petition #19

The petition filed by Magnus L.D. MacLeod on October 15, 2019, alleging MAP improperly adopted the Amendment in violation of Arizona statute.

Petition #34

The petition filed by Mogollon Airpark, Inc. on December 16, 2019, alleging MacLeod was violating the Amendment by living full-time in his hangar.

Preponderance of the evidence

The standard of proof required in the hearing, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Residential Lots

Lots numbered 178 through 213, inclusive, as categorized by the Amendment.

Tract G

An aircraft storage hangar lot in Unit 4B owned by Magnus L.D. MacLeod, which was the central property in the dispute.

Unit 4B

The specific subdivision within Mogollon Airpark subject to the Declaration and Amendment. It includes Lots 178-213 and Tracts B, E, F, G, H, I, J, K, L, and M.

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20F-H2019019-REL

1 source

This administrative law judge decision concerns cross-petitions filed by Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP) regarding disputes within a planned community association in Arizona. MacLeod’s petition challenged the validity of an amendment to the community’s governing documents (CC&Rs), arguing it was improperly adopted and unreasonably altered prior usage rights for hangar/homes, specifically his Tract G property. MAP’s petition alleged that MacLeod was in continued violation of the amendment by living full-time in his aircraft storage hangar and requested injunctive relief to compel compliance. The judge ruled to dismiss MacLeod’s petition, finding the amendment was properly adopted, and partially affirmed MAP’s petition, concluding that MacLeod had violated the amendment by residing full-time in the hangar. Ultimately, MAP was deemed the prevailing party in the proceedings.

1 source

What were the central legal issues and findings in this property dispute case?
How did the contested amendment change the community’s declaration and rules?
What were the core arguments and outcomes for each party involved in this hearing?

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Case Participants

Petitioner Side

  • Jeffrey M. Proper (attorney)
    JEFFREY M. PROPER, PLLC
    Counsel for Magnus L.D. MacLeod

Respondent Side

  • Gregory A. Stein (attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Mogollon Airpark, Inc.
  • Craig Albright (board member)
    MAP Board of Directors
    Then President of the MAP Board of Directors

Neutral Parties

  • Kay Abramsohn (ALJ)
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Magnus L.D. MacLeod (party)
    Petitioner in 20F-H2019019-REL and Respondent in 20F-H2019034-REL
  • Pat MacLeod (HOA president)
    HOA
    Brother of Petitioner; previous owner of Tract G; appeared to be HOA President around 2017

Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

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

Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.

Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.

Key Issues & Findings

HOA violation of requirement to provide association records within ten business days.

Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.

Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

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19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/714863.pdf

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19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/725808.pdf

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Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

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Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

——————————————————————————–

Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

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Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

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Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

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Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

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Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.

Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association

This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?

2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?

3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?

4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?

5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?

6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?

7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?

8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?

9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.

10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?

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Answer Key

1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”

2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).

3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.

4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.

5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.

6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.

8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.

9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.

10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.

1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.

2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.

4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?

5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

A.R.S. § 33-1805

The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.

Attorney-Client Privilege

A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”

Burden of Proof

The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.

Executive Session

A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.

An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

Office of Administrative Hearings (OAH)

The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.

Petition

The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”

Rehearing

A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”

Respondent

The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

The Letter

The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.

She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.

Introduction: The Fight for Information

Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.

This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.

1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.

The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”

Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.

The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.

2. Takeaway #2: Asking for “Everything” Can Get You Nothing.

Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.

After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”

In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:

An association is not required to guess what records are being requested.

The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.

3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.

What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.

But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:

Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.

Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.

Conclusion: Strategy Over Sheer Effort

The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.

This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?

Case Participants

Petitioner Side

  • Joan A. Tober (petitioner)
    Former Board member; current Finance Committee member

Respondent Side

  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Mr. Mastrosimone (Board President)
    Civano 1 Neighborhood 1 Homeowners Association
    Testified at rehearing

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Clerk)
  • Felicia Del Sol (Clerk)
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal

Loraine Brokaw vs. Sin Vacas Property Owners Association

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Case Summary

Case ID 19F-H1918017-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-01
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Loraine Brokaw Counsel —
Respondent Sin Vacas Property Owners Association Counsel Sean K Moynihan, Esq. and Jason E Smith, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.

Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.

Key Issues & Findings

Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.

Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

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. § 33-1803
  • ARIZ. REV. STAT. § 33-1802(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Bylaws Article IV, Covenant For Maintenance Assessments, Section 6

Analytics Highlights

Topics: HOA Assessment Dispute, Uniform Assessment Rate, Bylaws Interpretation, Planned Community, Governing Document Precedence
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. § 33-1803
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2026-04-24T11:16:43 (137.2 KB)

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2026-01-23T17:26:53 (137.2 KB)

Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)

Executive Summary

This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.

The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.

The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.

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I. Case Overview

• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).

• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.

• Case Number: 19F-H1918017-REL.

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Hearing Date: March 25, 2019.

• Decision Date: April 01, 2019.

II. Central Issue of the Dispute

The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:

“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”

The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.

III. Petitioner’s Position and Key Testimony

• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).

• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.

• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:

◦ 100%: For a home on a single lot.

◦ 25%: For an undeveloped vacant lot.

◦ 150%: For a residence situated on two lots.

• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.

• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”

• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.

IV. Respondent’s Position

The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.

V. Analysis of Governing Documents

The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.

Document Section

Key Provision

Relevance to the Case

Bylaws Article I, Section 5

Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”

This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.

Bylaws Article IV, Section 6

“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”

This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.

Bylaws Article IV, Section 7

States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”

This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.

VI. Judge’s Findings and Conclusions of Law

The Administrative Law Judge made the following key determinations, leading to the denial of the petition:

• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.

• Undisputed Material Facts: The Judge found it undisputed that:

1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).

2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.

3. The Petitioner’s residence is constructed across both lots.

• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:

• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.

• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.

VII. Final Order

Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.

The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.

Study Guide: Brokaw v. Sin Vacas Property Owners Association

This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the provided source document.

1. Who were the primary parties involved in the hearing, and what were their respective roles?

2. What specific relief did the Petitioner request from the Office of Administrative Hearings?

3. What specific action taken by the Respondent prompted the Petitioner to file her petition?

4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.

5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?

6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?

7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?

8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?

9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?

10. What was the final order issued by the Administrative Law Judge in this matter?

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Answer Key

1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.

2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.

3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”

4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.

5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.

6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”

7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.

8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.

9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.

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Essay Questions

The following questions are designed for longer, more analytical responses. No answers are provided.

1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.

2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?

3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.

4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?

5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.

Association

The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.

Assessment

A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.

Bylaws

The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.

Department

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

Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.

Petitioner

Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.

Planned Community

A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.

Preponderance of the evidence

The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.

Respondent

The Sin Vacas Property Owners Association, the entity against whom the petition was filed.

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19F-H1918017-REL

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.

1 source

What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?

Based on 1 source

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Case Participants

Petitioner Side

  • Loraine Brokaw (petitioner)

Respondent Side

  • Jason Smith (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Sin Vacas Property Owners Association
  • Sean Moynihan (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Sin Vacas Property Owners Association

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Robert Brokaw (witness)
    Observed the hearing
  • Jack Juraco (witness)
    Observed the hearing

Thomas P. Satterlee vs. Green Valley Country Club Vistas II Property

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

Case Summary

Case ID 18F-H1817022-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-09-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The petition was dismissed with prejudice upon rehearing because the Administrative Law Judge confirmed that the Respondent HOA did not meet the statutory definition of a 'planned community,' thereby depriving the OAH and ADRE of subject matter jurisdiction.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Satterlee Counsel —
Respondent Green Valley Country Club Vistas II Property Owner's Association Counsel James A. Robles

Alleged Violations

A.R.S. § 33-1802(4)

Outcome Summary

The petition was dismissed with prejudice upon rehearing because the Administrative Law Judge confirmed that the Respondent HOA did not meet the statutory definition of a 'planned community,' thereby depriving the OAH and ADRE of subject matter jurisdiction.

Why this result: The ALJ narrowly interpreted the statutory term 'roadway' to mean the part of the road intended for vehicles, excluding the landscaping maintenance performed by the HOA.

Key Issues & Findings

Subject Matter Jurisdiction: Planned Community Status

This issue was heard on rehearing. Petitioner argued that the maintenance of entrance landscaping constituted maintaining 'roadways' by interpreting the statutory term broadly, citing the 'Complete Streets' approach and Pima County right-of-way documents. The ALJ affirmed the original decision, holding that the plain meaning of 'roadway' is the part of the road intended for vehicles, not the entire right-of-way, and thus jurisdiction was lacking.

Orders: Petitioner’s petition is dismissed with prejudice because the Office of Administrative Hearings and the Arizona Department of Real Estate lack subject matter jurisdiction over the dispute.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1802
  • Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989)
  • Swichtenberg v. Jack Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991)
  • Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 95 (App. 2011)
  • Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993)
  • Sunrise Desert Vistas v. Salas, 1 CA-CV 14-052 (Ct. App. 2016)

Analytics Highlights

Topics: Jurisdiction, Planned Community, A.R.S. 33-1802, Roadway Definition, Rehearing, HOA Dispute, Statutory Interpretation
Additional Citations:

  • A.R.S. § 33-1802
  • Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989)
  • Swichtenberg v. Jack Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991)
  • Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 95 (App. 2011)
  • Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993)
  • Sunrise Desert Vistas v. Salas, 1 CA-CV 14-052 (Ct. App. 2016)

Video Overview

Audio Overview

Decision Documents

18F-H1817022-REL-RHG Decision – 661827.pdf

Uploaded 2026-01-23T17:23:02 (130.3 KB)

Jurisdictional Analysis in Satterlee v. Green Valley Country Club Vistas II POA

Executive Summary

This document outlines the legal analysis and final decision in case number 18F-H1817022-REL, wherein the Office of Administrative Hearings (OAH) dismissed a petition filed by Thomas P. Satterlee against the Green Valley Country Club Vistas II Property Owner’s Association. The dismissal was based on a lack of subject matter jurisdiction.

The central issue was whether the Respondent association qualified as a “planned community” under Arizona statute A.R.S. § 33-1802(4). This determination hinged entirely on the interpretation of the phrase “covenant to maintain roadways.” The Petitioner argued that the association’s maintenance of landscaping at the community’s entrance constituted roadway maintenance, asserting a broad definition of “roadway” that encompassed the entire right-of-way, supported by the modern civil engineering concept of “Complete Streets.”

The Administrative Law Judge (ALJ) rejected this argument, concluding that the plain meaning of “roadway” refers specifically to the portion of a road used by vehicles. The ALJ noted that the state legislature used the specific term “roadway” in a 2014 statutory amendment, even though the broader “Complete Streets” concept was already well-established, indicating a deliberate choice of the narrower term. Ultimately, because the association’s activities did not include maintaining roadways, it was not deemed a “planned community,” and therefore, the OAH and the Arizona Department of Real Estate lacked jurisdiction to hear the case. The petition was dismissed with prejudice.

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Case Overview and Procedural History

The matter of Thomas P. Satterlee v. Green Valley Country Club Vistas II Property Owner’s Association (Case No. 18F-H1817022-REL) was adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a dispositive motion concerning the OAH’s subject matter jurisdiction over the Respondent association.

• January 26, 2018: The Respondent filed a Motion to Dismiss, arguing the OAH lacked jurisdiction because the association was not a “planned community” as defined by A.R.S. § 33-1802(4).

• March 15, 2018: Following oral arguments, the ALJ issued an initial decision finding that the OAH lacked jurisdiction and dismissed the petition.

• April 10, 2018: The Petitioner filed a Homeowner’s Association (HOA) Dispute Rehearing Request with the Arizona Department of Real Estate.

• May 3, 2018: The Commissioner granted the Petitioner’s request for a rehearing.

• September 5, 2018: A new round of oral arguments was held, focusing again on the dispositive jurisdictional issue.

• September 25, 2018: The ALJ issued a final decision, once again dismissing the petition with prejudice for lack of subject matter jurisdiction.

The Central Jurisdictional Question

The jurisdiction of the Office of Administrative Hearings and the Arizona Department of Real Estate in this matter was entirely dependent on whether the Respondent association met the statutory definition of a “planned community.” A lack of subject matter jurisdiction is a non-waivable issue that voids any administrative decisions made without it.

The pivotal question was whether the association’s maintenance of landscaping around the walls and sign at the community entrance constituted a “covenant to maintain roadways,” which is a key criterion in the statute.

Statutory Framework: A.R.S. § 33-1802(4)

The relevant statute, A.R.S. § 33-1802(4), defines a “planned community” as:

“…a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation or unincorporated association of owners…”

A 2014 amendment to this statute added the language regarding an “easement to maintain roadways or a covenant to maintain roadways.” Before this amendment, an association had to own real property to be considered a planned community.

Arguments of the Parties

The dispute centered on the interpretation of the single word “roadways” within the statute.

Petitioner’s Position (Thomas P. Satterlee)

The Petitioner argued for a broad and expansive interpretation of “roadway,” asserting that it should include the entire right-of-way.

• Core Argument: The developer built walls and an entrance sign, and the Respondent’s subsequent maintenance of the surrounding landscaping constitutes a “covenant to maintain roadways.”

• “Complete Streets” Concept: The Petitioner presented extensive documentation to argue that the modern civil engineering approach of “Complete Streets” supports his interpretation. This concept treats the entire transportation corridor—including sidewalks, bicycle lanes, transit stops, and landscaping—as an integrated system for all users.

• Equivalency of Terms: The Petitioner claimed that “roadway” is the “new word for ‘street'” and that the “roadway” encompasses the entire width of the “right-of-way.”

• Evidence Presented: The Petitioner submitted numerous documents to support his claim, including:

◦ A letter from the Pima County Director of Transportation confirming the association’s maintenance of landscaping.

◦ Excerpts from the Pima County Roadway Design Manual (RDM).

◦ Pima County Board of Supervisors policies on landscaping in the right-of-way.

◦ Website printouts from the U.S. Department of Transportation, Federal Highway Administration, and other entities defining “Complete Streets.”

◦ Pima County Code of Ordinances related to roadway projects.

Respondent’s Position (Green Valley Country Club Vistas II POA)

The Respondent advocated for a strict, plain-meaning interpretation of the statute.

• Core Argument: The maintenance of landscaping does not constitute the maintenance of a “roadway.”

• Legislative Intent: The Respondent argued that the Arizona legislature deliberately chose the specific term “roadway” when it amended the statute in 2014. By that time, the “Complete Streets” concept was well-known. Had the legislature intended a broader scope, it could have used terms like “right-of-way” or “Complete Streets,” but it did not.

• Conclusion: Because the association does not have a covenant to maintain roadways, it does not meet the statutory definition of a “planned community,” and therefore the state agencies lack jurisdiction.

Administrative Law Judge’s Analysis and Decision

The ALJ’s decision was grounded in principles of statutory construction, focusing on the plain meaning of the legislative language.

The ALJ began with the legal principle that when construing statutes, a court must first look to the language of the statute and give the words their plain meaning, presuming the legislature expressed its meaning as clearly as possible.

To determine the plain meaning, the ALJ consulted numerous dictionary definitions of “roadway” and “street.”

Source

Definition of “Roadway”

English Oxford Living Dict.

“The part of a road intended for vehicles, in contrast to the pavement or verge.”

Merriam-Webster

“the part of a street reserved for vehicles.”

Dictionary.com

“The part of a road over which vehicles travel; road.”

Cambridge Dictionary

“the part of the road on which vehicles drive.”

American Heritage Dictionary

“A road, especially the part over which vehicles travel.”

Oxford Learner’s Dictionaries

“a road or the part of a road used by vehicles.”

The ALJ concluded that the consistent, plain meaning of “roadway” is the portion of a road upon which vehicles travel, distinct from adjacent areas like sidewalks or landscaping.

The ALJ found the Petitioner’s evidence regarding the “Complete Streets” concept to be irrelevant to the statutory interpretation. The decision noted that because the legislature amended the statute after this concept was widely adopted but chose to use the narrower term “roadway,” it signaled a clear intent not to encompass the entire right-of-way. The ALJ stated:

“Had the legislature intended to include associations such as Respondent in the definition of ‘planned community’ in A.R.S. § 33-1802(4), it could have used the term ‘right-of-way’ or ‘Complete Streets’.”

The ALJ highlighted that several documents submitted by the Petitioner actually undermined his argument by explicitly distinguishing between “roadway” and “right-of-way.”

• Pima County Code 10.56.020: This ordinance defines minor projects to include “[c]hanges or improvements to the right-of-way area outside the shoulder of an existing roadway.”

• Pima County RDM: The design manual specified different drawing scales for “Roadway Plans” (1” = 40’) and “Landscape Plans” (1” = 20’).

• Pima County RDM Statement: Another document stated that the “[i]nstallation of landscaping shall begin not later than six months after the formal completion date of the roadway project.”

These examples demonstrated that, even within the Petitioner’s own evidence, “roadway” and “landscaping” within the “right-of-way” are treated as distinct elements.

Final Order and Implications

Based on the analysis, the ALJ reached a definitive conclusion on the jurisdictional question.

• Finding: The association’s maintenance of the area around the entrance walls and sign does not render it a “planned community” because this activity is not maintenance of “roadways” as understood by the statute’s plain meaning.

• Order: The petition was dismissed with prejudice on September 25, 2018.

• Legal Consequence: The Office of Administrative Hearings and the Arizona Department of Real Estate lack subject matter jurisdiction over the petition.

• Further Recourse: The decision explicitly states that the Petitioner remains free to file an action in a court of competent jurisdiction as specified by the Respondent’s community documents.

Study Guide: Satterlee v. Green Valley Country Club Vistas II Property Owner’s Association

This guide reviews the administrative law case Thomas P. Satterlee v. Green Valley Country Club Vistas II Property Owner’s Association (No. 18F-H1817022-REL-RHG). The central issue is whether the Respondent association qualifies as a “planned community” under Arizona law, which would grant jurisdiction to the Arizona Department of Real Estate and the Office of Administrative Hearings. The case hinges on the statutory definition of “roadway” and whether the association’s maintenance of landscaping falls under a “covenant to maintain roadways.”

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences based on the provided source document.

1. What was the Respondent’s primary argument for filing a Motion to Dismiss?

2. How did the Petitioner, Thomas P. Satterlee, initially argue that the Respondent qualified as a “planned community”?

3. What was the key piece of evidence presented by the Petitioner from the Pima County Director of Transportation during the rehearing?

4. What is the “Complete Streets” concept, and how did the Petitioner attempt to use it in his argument?

5. According to the Respondent, how did the Arizona legislature’s choice of words in the 2014 statutory amendment undermine the Petitioner’s argument?

6. How did the Administrative Law Judge use dictionary definitions to analyze the term “roadway”?

7. What piece of Pima County code did the judge cite to show that “roadway” and “right-of-way” are distinct terms?

8. Why did the Administrative Law Judge ultimately find the “Complete Streets” argument to be irrelevant to the case?

9. What is the legal principle regarding subject matter jurisdiction as stated in the Conclusions of Law?

10. What was the final order in this case, and what option did it leave available to the Petitioner?

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Answer Key

1. The Respondent argued that the Office of Administrative Hearings lacked subject matter jurisdiction over the petition. This was because the Respondent was not a “planned community” as defined by A.R.S. § 33-1802(4), since it did not own real estate or have a covenant to maintain roadways.

2. The Petitioner initially argued that the Respondent had a “covenant to maintain roadways” because the developer built walls and a sign at the community entrance, and the Respondent had maintained the landscaping around the sign. He contended that the term “roadway” in the statute included “roadway systems,” which would encompass the landscaped entrance land.

3. During the rehearing, the Petitioner presented a letter from Ana M. Olivares, PE, Director of Pima County Transportation. The letter stated that the Respondent had been maintaining the landscaping at the corners of La Canada Drive and La Canoa since its installation and would continue to do so until the county found funds to take over maintenance.

4. The “Complete Streets” concept is an approach to designing roadways and rights-of-way to be safe and accessible for all users, including pedestrians, bicyclists, and motorists. The Petitioner argued that this modern engineering approach effectively equates the term “roadway” with the entire “right-of-way,” which would include the landscaped areas maintained by the Respondent.

5. The Respondent argued that the “Complete Streets” concept was well-known by 2014 when the statute was amended. However, the Arizona legislature specifically chose to use the term “roadway,” not “right-of-way” or “Complete Streets,” implying a narrower, more specific meaning was intended.

6. The Administrative Law Judge consulted multiple dictionaries (English Oxford, Merriam-Webster, Dictionary.com, etc.) to establish the plain meaning of “roadway.” These definitions consistently described a “roadway” as the part of a road intended for vehicle travel, distinct from adjacent areas like sidewalks or landscaping.

7. The judge cited Pima County Code of Ordinances 10.56.020, which defined minor projects to include “[c]hanges or improvements to the right-of-way area outside the shoulder of an existing roadway.” This language explicitly treats the “right-of-way” and “roadway” as separate and distinct areas, contradicting the Petitioner’s claim.

8. The judge found the “Complete Streets” argument irrelevant because the statute in question was amended after the widespread adoption of the concept, yet the legislature chose to use the term “roadway.” The judge reasoned that if the legislature had intended to include the broader scope of a “right-of-way,” it would have used that specific term or referenced “Complete Streets.”

9. The Conclusions of Law state that a lack of subject matter jurisdiction cannot be waived by the parties and must be addressed. Administrative decisions that go beyond an agency’s statutory power are considered void, as jurisdiction is defined by statutes, not by the parties involved.

10. The final order was that the Petitioner’s petition be dismissed with prejudice because the Office of Administrative Hearings lacked subject matter jurisdiction. The Petitioner remained free to file an action in a court of competent jurisdiction as specified by the Respondent’s community documents.

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Essay Questions

Answer the following questions in a detailed essay format. No answers are provided.

1. Analyze the Petitioner’s legal strategy, focusing on the evolution of his arguments from the initial hearing to the rehearing. Discuss the strengths and weaknesses of using the “Complete Streets” concept as the central pillar of his case for establishing jurisdiction.

2. Examine the Administrative Law Judge’s method of statutory interpretation in this case. How did the judge apply the principles of “plain meaning” and legislative intent when analyzing the definition of “planned community” in A.R.S. § 33-1802(4)?

3. Discuss the legal and practical distinction between “roadway” and “right-of-way” as presented in the case documents. Explain how this distinction was pivotal to the judge’s final decision on subject matter jurisdiction.

4. Evaluate the significance of the 2014 amendment to A.R.S. § 33-1802(4). How did this change in statutory language, which added “easement to maintain roadways or a covenant to maintain roadways,” create the central point of contention in this dispute?

5. Based on the judge’s Conclusions of Law, explain the legal concept of subject matter jurisdiction and why it cannot be waived or conferred by the parties involved. How does this principle protect the integrity of the administrative and judicial process?

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders, such as the dismissal of a petition.

A.R.S. § 33-1802(4)

The Arizona Revised Statute that defines a “planned community.” The statute specifies that a planned community includes real estate development where a nonprofit association owns/operates real estate or holds an easement or covenant to maintain roadways for the purpose of managing, maintaining, or improving the property.

Complete Streets

An approach to planning, designing, and operating roadways and rights-of-way with all users in mind (pedestrians, bicyclists, motorists, etc.) to make the transportation network safer and more efficient. The concept includes elements like sidewalks, bike lanes, and transit stops.

Covenant

A formal agreement or promise. In this case, a “covenant to maintain roadways” is a condition that, if met by a homeowner’s association, could classify it as a “planned community” under Arizona law.

Jurisdiction

The official power to make legal decisions and judgments. In this case, the central issue was whether the Office of Administrative Hearings had jurisdiction over the dispute.

Petitioner

The party who brings a petition or action before a court or administrative body. In this case, the Petitioner is Thomas P. Satterlee.

Planned Community

As defined by A.R.S. § 33-1802(4), a real estate development with real estate owned/operated by, or having an easement/covenant to maintain roadways held by, an association of owners who are mandatory members and pay assessments.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent is Green Valley Country Club Vistas II Property Owner’s Association.

Right-of-Way

The strip of land over which a public road is built. As shown in Pima County policy diagrams, this can include travel lanes, medians, shoulders, bike lanes, sidewalks, and landscaping areas. The court found this to be a broader term than “roadway.”

Roadway

Based on multiple dictionary definitions cited by the judge, the part of a road intended for vehicles, in contrast to the pavement, verge, or sidewalk. The judge concluded its “plain meaning” is the portion of a road upon which vehicles travel.

Subject Matter Jurisdiction

The authority of a court or administrative body to hear cases of a particular type or cases relating to a specific subject matter. The decision states this type of jurisdiction cannot be waived and is determined by statute, not the parties.

  • don't play in the street

Case Participants

Petitioner Side

  • Thomas P. Satterlee (petitioner)

Respondent Side

  • James A. Robles (attorney)
    Perry, Childers, Hanlon & Hudson, PLC

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Felicia Del sol (staff)
    Clerk/Distribution staff

Other Participants

  • Ana M. Olivares (Director)
    Pima County Transportation
    Provided documentation/letter regarding landscaping maintenance

William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2026-01-23T17:20:09 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

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17F-H1717032-REL Decision – 586360.pdf

Uploaded 2026-01-23T17:20:15 (95.9 KB)

Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.

Study Guide: Brown v. Terravita Country Club, Inc.

This guide provides a detailed review of the administrative case William M. Brown v. Terravita Country Club, Inc. (No. 17F-H1717032-REL), heard before the Arizona Office of Administrative Hearings. It covers the central conflict, the legal arguments, the statutory interpretations, and the final resolution of the dispute.

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Short Answer Quiz

Instructions: Answer the following ten questions based on the provided source documents. Each answer should be approximately 2-3 sentences.

1. What was the initial action taken by William M. Brown on February 6, 2017, and what was Terravita Country Club’s response?

2. On what legal grounds did Terravita justify its refusal to provide the requested records?

3. What was William M. Brown’s primary legal argument against Terravita’s position during the hearing?

4. What was the Administrative Law Judge’s interpretation of Terravita’s argument regarding A.R.S. § 33-1805(B)(2), and why was it rejected?

5. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

6. What key fact regarding the “pending litigation” was central to the Judge’s final decision?

7. What was the final conclusion reached by the Administrative Law Judge regarding Terravita’s actions?

8. Identify the three specific orders issued by the Administrative Law Judge in the “Recommended Order.”

9. What state department adopted the Administrative Law Judge’s decision, making it a “Final Order”?

10. Besides complying with the records request and paying the filing fee, what specific penalty was explicitly not levied against Terravita?

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Answer Key

1. On February 6, 2017, William M. Brown requested records from Terravita Country Club. On February 14, 2017, Terravita responded via email, refusing to disclose the records because they were allegedly part of pending criminal litigation against Mr. Brown.

2. Terravita justified its refusal by citing Arizona Revised Statute (A.R.S.) § 33-1805(B)(2). The club argued that this statute allows an association to withhold records related to “pending litigation.”

3. Mr. Brown’s primary argument was that Terravita had violated A.R.S. § 33-1805(A) by failing to provide records within 10 business days. He contended that the exemption for “pending litigation” in § 33-1805(B)(2) applies only when the association itself is a party to that litigation, which Terravita was not in his criminal case.

4. The Judge interpreted Terravita’s argument to mean that an association could deny any records request if the documents related to pending litigation between any two parties anywhere. This interpretation was rejected because it would lead to the “absurd result” of broadly denying access to records, which was not the statute’s intent.

5. “Preponderance of the evidence” is the evidentiary standard where the trier of fact must be convinced that a contention is more probably true than not. In this case, the Petitioner (Mr. Brown) bore the burden of proving that Terravita violated the statute, while the Respondent (Terravita) bore the burden of proving its affirmative defenses.

6. The central fact was that Terravita Country Club was not a party to the criminal case brought against Mr. Brown by the City of Scottsdale. Because the association was not a party, the judge ruled that the statutory exemption for withholding records related to pending litigation did not apply.

7. The Administrative Law Judge concluded that Mr. Brown had established by a preponderance of the evidence that Terravita failed to fulfill his records request within the required 10 business days. Therefore, the Tribunal concluded that Terravita violated the charged provision of A.R.S. § 33-1805.

8. The Judge ordered that: (1) the Petitioner (Mr. Brown) be deemed the prevailing party; (2) Terravita must comply with the records request within 10 days of the Order; and (3) Terravita must pay the Petitioner’s $500.00 filing fee within 30 days of the Order.

9. The Commissioner of the Arizona Department of Real Estate adopted the Administrative Law Judge’s decision. This action, dated July 24, 2017, made the decision a binding Final Order.

10. The Recommended Order, which was adopted as the Final Order, explicitly states that “No Civil Penalty is found to be appropriate in this matter.”

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response for each, drawing upon the facts, legal principles, and arguments presented in the source documents.

1. Analyze the conflicting interpretations of A.R.S. § 33-1805(B)(2) presented by William M. Brown and Terravita Country Club. Explain the legal reasoning the Administrative Law Judge used to resolve this dispute, including the principle of avoiding “absurd results.”

2. Describe the complete timeline of the case, from the initial records request to the issuance of the Final Order. For each key date, explain the event’s significance to the progression and outcome of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the case documents. Explain how this standard was applied to both the Petitioner’s claim and the Respondent’s affirmative defense and why the Judge ultimately found that the Petitioner had met this burden.

4. Examine the role of the Office of Administrative Hearings and the Department of Real Estate in resolving disputes within planned communities, as demonstrated by this case. How does the process flow from an initial petition to a binding order?

5. Based on the Judge’s decision, formulate an argument about the balance between a homeowner’s right to access association records and an association’s right to protect its interests in legal matters. How does A.R.S. § 33-1805 attempt to strike this balance, and how did the ruling in this case clarify its limits?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over hearings at the Office of Administrative Hearings. In this case, Velva Moses-Thompson served as the ALJ.

Affirmative Defense

A set of facts or legal arguments raised by the respondent that, if proven, can defeat or mitigate the petitioner’s claim. Terravita’s claim that A.R.S. § 33-1805(B)(2) exempted them was their affirmative defense.

A.R.S. § 33-1805(A)

The section of Arizona Revised Statutes that requires a planned community association to make financial and other records available for member examination within 10 business days.

A.R.S. § 33-1805(B)(2)

The section of Arizona Revised Statutes that allows an association to withhold books and records from disclosure if the portion withheld relates to “pending litigation.”

A.R.S. § 41-2198.01

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

Burden of Proof

The obligation on a party in a trial to produce the evidence that will prove the claims they have made against the other party. The Petitioner bore the burden to prove the violation, and the Respondent bore the burden to establish its defense.

Department of Real Estate

The Arizona state agency that received the Petition for Hearing from Mr. Brown and ultimately adopted the ALJ’s decision, making it final.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which adopted the ALJ’s Recommended Order. This order is an administrative action and is effective immediately upon service.

Office of Administrative Hearings

An independent state agency in Arizona where administrative law judges conduct hearings on disputes, such as the one between Mr. Brown and Terravita.

Petitioner

The party who initiates a lawsuit or hearing by filing a petition. In this case, William M. Brown was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents “the greater weight of the evidence.”

Prevailing Party

The party who is successful in a legal case. The Final Order deemed William M. Brown the prevailing party.

Recommended Order

The initial decision and orders issued by the Administrative Law Judge following a hearing. This decision is then sent to the relevant state agency (in this case, the Department of Real Estate) for adoption.

Respondent

The party against whom a petition is filed; the party who must respond to the claims. In this case, Terravita Country Club, Inc. was the Respondent.

Your HOA Can’t Use “Pending Litigation” to Hide Records. This Homeowner Proved It.

Introduction: The Wall of Secrecy

For many homeowners, dealing with a Homeowners Association (HOA) can feel like confronting an organization that operates with total authority and little transparency. Board decisions can seem arbitrary, and getting straight answers or access to official documents can be a frustrating, uphill battle. But what happens when an HOA flatly denies a simple request for records, citing a vague legal reason?

One homeowner decided to find out. The case of William M. Brown versus the Terravita Country Club provides a fascinating look at how a single individual challenged his HOA’s interpretation of state law. In doing so, he not only won access to the records he sought but also revealed a crucial limit on an HOA’s power to operate in secret.

The Takeaways: Four Lessons from a Landmark HOA Dispute

This case offers several powerful and practical lessons for any homeowner who has ever felt stonewalled by their association’s board.

Takeaway 1: “Pending Litigation” Isn’t a Blank Check to Deny Records

At the heart of the dispute was a simple request. On February 6, 2017, William M. Brown asked his HOA, Terravita, for access to association records. The HOA denied the request, citing an exemption in Arizona law (A.R.S. § 33-1805(B)(2)) that allows an association to withhold records related to “pending litigation.”

Terravita’s argument was that this exemption applied because of a pending criminal case against Mr. Brown. Crucially, they argued this was not just any unrelated case; the criminal charges stemmed from allegations that Mr. Brown had threatened the HOA’s board members and property. From their perspective, the records request was directly linked to a hostile legal situation involving the association’s leadership. However, the critical fact remained that the HOA itself was not a formal party to the criminal case.

The judge’s ruling was definitive and clear: the “pending litigation” exemption can only be used to withhold records if the litigation is between the association and the member. Because Terravita was not a party to Mr. Brown’s criminal case, it had no legal grounds to use that case as an excuse to withhold its records from him. This ruling draws a bright line: The “pending litigation” shield cannot be borrowed from a separate case, even one that feels highly relevant to the HOA.

Takeaway 2: Legal Interpretations Must Be Sensible, Not Absurd

The HOA argued for a literal interpretation of the law, claiming the statute didn’t explicitly state that the association had to be a party to the litigation. Administrative Law Judge Velva Moses-Thompson rejected this line of reasoning, stating that it would lead to an “absurd result.”

This is a critical lesson for homeowners. Judges are tasked with ensuring laws are applied sensibly. When an HOA’s interpretation of a rule would create an illogical or unfair outcome, it is vulnerable to legal challenge. The judge highlighted the flaw in the HOA’s logic with a powerful statement in her decision:

Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.

Takeaway 3: A Single Homeowner Can Successfully Challenge Their HOA

Perhaps the most empowering aspect of this case is who argued it. The court documents show that while the HOA was represented by legal counsel (“Joshua Bolen, Esq. appeared on behalf of Respondent Terravita Country Club, Inc.”), Mr. Brown represented himself (“Petitioner William M. Brown appeared on behalf of himself”).

Despite being outmatched on paper, Mr. Brown successfully researched the law, presented a logical argument, and held his ground. His victory demonstrates that the legal process is not just for lawyers. A well-researched, logical argument from a homeowner can be more powerful than a law firm’s flawed interpretation of a statute. The judge ultimately found that “Mr. Brown established by a preponderance of the evidence that Terravita failed to fulfill his February 6, 2017 records request within 10 business days.”

Takeaway 4: Misapplying the Law Can Have Financial Consequences

This wasn’t just a moral victory. The final order, adopted by the Arizona Department of Real Estate on July 24, 2017, came with tangible consequences for the HOA. For its failure to correctly apply the law, Terravita faced direct and tangible consequences.

• The HOA was ordered to provide the requested records within 10 days.

• The homeowner, Mr. Brown, was deemed the “prevailing party.”

• The HOA, Terravita, was ordered to pay Mr. Brown his filing fee of $500.00.

This outcome underscores a critical point: when an HOA oversteps its authority or misinterprets the law, it can be held financially responsible for the costs incurred by the homeowner forced to challenge its actions.

Conclusion: Knowledge is Power

The story of William M. Brown’s dispute with his HOA serves as a powerful reminder that HOAs do not have unlimited power. They are governed by specific state laws, and understanding those laws is the most effective tool a homeowner possesses.

The central lesson is that an HOA’s authority is not absolute, and its interpretation of its own rules—and, more importantly, state law—must be reasonable and sensible. This case affirms the right of members to transparency and proves that a single, well-prepared homeowner can successfully stand up for those rights.

After seeing how one homeowner held his board accountable, will you take the time to learn your rights before you need them?

Case Participants

Petitioner Side

  • William M. Brown (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Joshua Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA coordinator)
    Arizona Department of Real Estate