Tag Archives: Rehearing

Asmaa Kadhum v. Goldcrest Patio Homes Condominium Association

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Case Summary

Case ID 22F-H2222028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-10-11
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Asmaa Kadhum Counsel —
Respondent Goldcrest Patio Homes Condominium Association Counsel —

Alleged Violations

A.R.S. § 33-1256

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove a violation of A.R.S. § 33-1256 because the specific issue raised—a complaint about a recorded lien—was moot, as the lien had been released, and no current enforcement action regarding the disputed legal fees was pending.

Why this result: The ALJ determined that absent a recorded lien or pending enforcement action, the Office of Administrative Hearings lacked jurisdiction to address the reasonableness or accuracy of the disputed legal fees under the specific statute cited (A.R.S. § 33-1256).

Key Issues & Findings

Requesting to Waive/or Adjust Unreasonable Collection Fees.

Petitioner sought to waive or adjust unreasonable collection fees and attorney fees ($2,351.40 or $3,500.00) charged by the HOA related to a lien placed on their unit, which was later released because it was allegedly based on incorrect amounts.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1256
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA lien, Collection fees, Attorney fees, Statutory violation, Jurisdiction, Rehearing
Additional Citations:

  • A.R.S. § 33-1256
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

22F-H2222028-REL Decision – 1005275.pdf

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22F-H2222028-REL Decision – 1009064.pdf

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22F-H2222028-REL Decision – 1_aamg stmt.pdf

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22F-H2222028-REL Decision – 2_email from silvia regarding late fees.pdf

Uploaded 2026-04-24T11:43:44 (457.3 KB)

22F-H2222028-REL Decision – 3_email regarding plumbing repair from laweyer.pdf

Uploaded 2026-04-24T11:43:48 (983.8 KB)

22F-H2222028-REL Decision – 4_ledger dec 2021.pdf

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22F-H2222028-REL Decision – 5_letter from lawyer.pdf

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22F-H2222028-REL Decision – 7_petition response.pdf

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22F-H2222028-REL Decision – 975165.pdf

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22F-H2222028-REL Decision – HO22-22028_ElectronicNotice_Hearing.pdf

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22F-H2222028-REL Decision – HO22-22028_ElectronicNotice_Petition.pdf

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22F-H2222028-REL Decision – HO22-22028_HearingScheduled.pdf

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22F-H2222028-REL Decision – HO22-22028_MC_Pet.ResponseToRespondentsResponseToPetition.pdf

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22F-H2222028-REL Decision – HO22-22028_MC_Response&ADRERequest.pdf

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22F-H2222028-REL Decision – HO22-22028_Notice_Hearing.pdf

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22F-H2222028-REL Decision – HO22-22028_Notice_Petition.pdf

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22F-H2222028-REL Decision – HO22-22028_Payment.pdf

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22F-H2222028-REL Decision – HO22-22028_Pet.ResponseTo.pdf

Uploaded 2026-04-24T11:44:48 (5499.9 KB)

22F-H2222028-REL Decision – HO22-22028_Petition.pdf

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22F-H2222028-REL Decision – HO22-22028_Response_Petition.pdf

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Briefing Document: Dispute Between Asmaa Kadhum and Goldcrest Patio Homes Condominium Association

Executive Summary

This document synthesizes the key facts and legal proceedings concerning a dispute between homeowner Asmaa Kadhum (Petitioner) and the Goldcrest Patio Homes Condominium Association (Respondent). The central conflict is the Petitioner’s refusal to pay approximately $3,500 in legal fees that the Respondent incurred during collection efforts for past-due assessments.

The dispute escalated when the Respondent, on June 15, 2020, filed a lien for $2,199.00 against the Petitioner’s property. The Petitioner contested the lien’s validity, citing numerous accounting errors. Subsequently, the Respondent’s own legal counsel advised releasing the lien on November 13, 2020, acknowledging it contained “invalid late fee charges” and was released to protect the association from a “potential false lien claim.”

Despite the release of the lien, the Respondent continued to demand payment for the legal fees. The Petitioner filed a petition with the Arizona Department of Real Estate (ADRE) on January 12, 2022, alleging a violation of A.R.S. § 33-1256 and arguing the collection fees were unreasonable.

Following a hearing and a rehearing, the Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision was based on a critical jurisdictional issue: because there was no active lien on the property at the time the petition was filed or heard, there was no existing violation of the cited statute for the Office of Administrative Hearings (OAH) to adjudicate. The ALJ concluded that the OAH lacks the authority to issue a declaratory judgment on the reasonableness of the fees in the absence of a pending enforcement action by the association. The underlying liability for the legal fees remains an unresolved issue between the parties.

Parties Involved

Name/Entity

Key Representative(s)

Petitioner

Asmaa Kadhum

Asmaa Kadhum, Mazin Ahmed Al-Salih

Respondent

Goldcrest Patio Homes Condominium Association

Jerry Latschar (Vice President), Cammy Bowring

Chronology of Key Events

Prior to May 1, 2019

Petitioner accrued unpaid assessments and fees totaling $1,375.00 under previous management (AAMG).

April 21, 2020

Respondent sent a notice to Petitioner demanding payment of $1,435.00 in past-due assessments and fees within 30 days.

April 30, 2020

Petitioner responded via email, stating it was “not a good timing for collections” due to the pandemic and requested late fees be removed.

June 15, 2020

Respondent recorded a Notice of Lien on Petitioner’s unit for an amount of $2,199.00.

August 7, 2020

Respondent’s attorney sent a notice stating the total amount due, including legal fees, was now $2,504.00.

September 10, 2020

Petitioner notified Respondent that the lien amount was incorrect and constituted an “improper lien.”

November 13, 2020

Respondent recorded a Release of Lien against the Petitioner’s unit.

December 10, 2020

Respondent’s attorney explained in a letter that the lien was released because it “included late fee charges that were found to be invalid.”

Post-Release

Respondent maintained that Petitioner still owed approximately $3,500.00 in legal fees from the collection process.

December 2021

An account ledger showed a balance of $2,685.40.

January 12, 2022

Petitioner filed a petition with the ADRE (Case No. HO22-22/028) alleging a violation of A.R.S. § 33-1256.

April 4, 2022

An administrative hearing was held before ALJ Tammy L. Eigenheer.

October 11, 2022

Following a rehearing, the ALJ issued a final decision, finding no violation of the cited statute and dismissing the petition.

October 27, 2022

Petitioner filed a miscellaneous motion, which the OAH did not consider, stating it could take no further action on the matter.

Analysis of the Core Dispute

The Disputed Legal Fees

The primary point of contention is the legal fees assessed to the Petitioner’s account for the collection of past-due assessments.

• Respondent’s Claim: The Respondent asserts that legal fees of approximately $3,500.00 are owed. However, during testimony, Respondent’s representative, Mr. Latschar, was “uncertain where the $3,500.00 total originated.”

• Conflicting Evidence: The amount claimed is inconsistent with other documents. Invoices from counsel submitted after the initial hearing showed total charges of only 661.50∗∗attributabletothePetitioner′smatterbetweenAugustandNovember2020.AledgerfromDecember2021showedatotaloutstandingbalanceof∗∗2,685.40, which included legal fees.

The Improper Lien

A foundational element of the Petitioner’s argument is the improper nature of the lien filed by the Respondent.

• Filing and Release: A lien for $2,199.00 was recorded on June 15, 2020, and officially released on November 13, 2020.

• Reason for Release: The Respondent’s attorney stated the release was necessary to “protect [Respondent] and our firm from a potential false lien claim” because the original notice “included late fee charges that were found to be invalid.” The Respondent’s response to the petition also states, “the lawyer was forced to release the lien” because of “errors” related to posting late fees.

• Varying Amounts: The Petitioner highlighted the inconsistent amounts demanded throughout the process:

◦ $1,435.00 in the April 2020 notice.

◦ $2,199.00 in the June 2020 lien filing.

◦ $2,504.00 in the August 2020 attorney notice.

Petitioner’s Position and Arguments

The Petitioner contends they should not be held responsible for legal fees stemming from the Respondent’s flawed collection process.

• Fees are Unreasonable: The core argument is that charging legal fees for an “invalid” lien based on “false statements and invoices” is unreasonable and unacceptable.

• Lack of Cooperation: The Petitioner claims to have made multiple attempts to discuss the matter and arrange payments, sending meeting requests in December 2021 that were allegedly ignored or cancelled.

• Principle of Fairness: The Petitioner argued, “if someone files a claim then realized that his filing process was based on wrong documents, and then dropped the claim himself, should the other party be responsible for the legal fees for that.”

Respondent’s Position and Arguments

The Respondent maintains that the legal fees are a legitimate debt resulting from the Petitioner’s failure to pay assessments.

• Legal Action was Necessary: The Respondent initiated legal action because the Petitioner had not paid assessments for “nearly a year” and had stated they would not make back payments until late fees were waived.

• Lien Release vs. Debt: The Respondent argues that the release of the lien “doesn’t release the balance owing, just the lien at the county.” The legal fees incurred to collect the past assessments remain due.

• Petitioner Contributed to Costs: The Respondent claims the Petitioner “proceeded to force the attorney to review the ledger, which caused further legal fees to be charged.”

Administrative Hearing and Legal Rulings

Case Details and Petition

• OAH Docket: 22F-H2222028-REL

• ADRE Case: HO22-22/028

• Alleged Violation: A.R.S. § 33-1256, which governs the placement of liens for assessments and requires that they be for “reasonable collection fees and for reasonable attorney fee.”

• Relief Sought: An order to “Waive / or Adjust Unreasonable Collection Fees.”

Administrative Law Judge’s Findings and Conclusions

Across both the initial hearing and the rehearing, the ALJ’s decision was consistent and based on a narrow interpretation of the OAH’s jurisdiction under the cited statute.

• Primary Finding: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256.

• Jurisdictional Limitation: The ALJ repeatedly emphasized that her authority was limited to evaluating existing liens. Since the lien was released in November 2020, well before the petition was filed in January 2022, there was no active lien to assess for reasonableness.

• Corrective Action: The ALJ stated that by releasing the improper lien, the Respondent had “fixed” the past error, removing it from the OAH’s purview.

• No Declaratory Judgment: The decision clarified that the OAH has “no jurisdiction to issue declaratory judgments.” It could not rule on whether the legal fees themselves were reasonable as a standalone issue, only whether an active lien containing those fees was compliant with statute.

• No Enforcement Action: The decision noted that at the time of the hearing, the Respondent was not pursuing any enforcement action (such as filing a new lien or foreclosure) to collect the disputed fees. The fees existed only as “a number on a ledger.”

Salient Quotes

• Petitioner: “Why why we have to pay for for them mistakes? That’s totally issue.”

• Petitioner: “$3,377 legal fee for placing lean is not reasonable or acceptable.”

• Respondent: “they caused us to obtain legal counsel by not paying their bills for almost a year… It doesn’t release the balance owing, just the lien at the county.”

• Respondent’s Attorney (via letter): “…because the original Notice of Lien ‘included late fee charges that were found to be invalid . . . a Release of Lien was recorded in order to protect [Respondent] and our firm from a potential false lien claim.'”

• Administrative Law Judge: “There is no lean on your property. I can’t say the lean is wrong because there is no lean at this point.”

• Administrative Law Judge: “I can’t I can’t say that what they did in the past was wrong because they have fixed it by releasing the lean.”

• Administrative Law Judge (Decision): “the exact amount of legal fees attributable to Petitioner is not relevant in this matter as there were no pending enforcement actions. This is not to say Petitioner may not be entitled to raise this question in a separate venue.”

Study Guide: Case No. 22F-H2222028-REL

Short-Answer Quiz

Instructions: Based on the provided source materials, answer the following questions in 2-3 complete sentences.

1. Identify the Petitioner and the Respondent in this case and describe the nature of their dispute.

2. What specific Arizona Revised Statute did the Petitioner allege the Respondent violated, and what was the core of this allegation?

3. On what date did the Respondent file a Notice of Lien against the Petitioner’s property, what was the amount, and why was this lien later released?

4. According to the Administrative Law Judge (ALJ), why did the Office of Administrative Hearings lack the jurisdiction to rule on the reasonableness of the legal fees sought by the Respondent?

5. How did the Petitioner respond to the Respondent’s April 21, 2020 notice of past-due assessments?

6. What action did the Respondent’s law firm state it was prohibited from taking until May 21, 2020, and what was the legal basis for this restriction?

7. After the initial hearing, what was the total amount of legal fees supported by the four invoices submitted by Mr. Latschar for the period between August 1 and November 30, 2020?

8. The Petitioner sought to sell their property and requested a statement from the Respondent showing a zero balance. What was the central point of contention preventing this?

9. In December 2021, the Petitioner attempted to schedule a meeting with the board to dispute a fee. What was the outcome of these requests?

10. What was the final outcome of the case as stated in the Administrative Law Judge’s decision on October 11, 2022?

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Answer Key

1. The Petitioner is Asmaa Kadhum, a condominium owner. The Respondent is the Goldcrest Patio Homes Condominium Association. Their dispute centers on the reasonableness of approximately $3,500 in legal fees the Association charged to Kadhum for collection efforts related to past-due assessments, particularly after the Association filed and then released an invalid lien on the property.

2. The Petitioner alleged a violation of A.R.S. Title 33, Chapter 16, Section 33-1256. The core of the allegation was that the Association was charging unreasonable collection and attorney fees, which is a standard addressed by this statute when an HOA places a lien against a unit.

3. The Respondent filed a Notice of Lien for $2,199.00 on June 15, 2020. The lien was later released on November 13, 2020, because, as the Respondent’s attorney noted, the original Notice of Lien “included late fee charges that were found to be invalid,” and the release was recorded to protect the Association and the law firm from a potential false lien claim.

4. The ALJ stated that the court could not rule on the reasonableness of the fees because there was no longer a recorded lien against the property. The petition was filed under A.R.S. § 33-1256, which governs liens, and since the lien had been released, there was no active violation or enforcement action for the court to evaluate or remedy. The OAH has no jurisdiction to issue declaratory judgments on such matters in the absence of an active enforcement action.

5. In an email dated April 30, 2020, the Petitioner responded to the notice by stating it was “not a good timing for collections” due to the pandemic. The Petitioner disputed the total amount, claiming late fees should be removed, and stated they were planning to pay the whole amount “after this pandemic goes away.”

6. In a May 5, 2020 email, the law firm, Mulcahy Law Firm, P.C., stated that pursuant to state law, it could not proceed with collection efforts until 30 days had passed from the April 21 notice. This meant the file could not be turned over to their office for collection until after May 21, 2020, giving the owner time to pay or arrange a payment agreement.

7. According to the ALJ’s decision from the initial hearing, the four invoices submitted by Mr. Latschar after the hearing showed total charges of $661.50 attributable to the Petitioner’s matter between August 1, 2020, and November 30, 2020.

8. The Petitioner wanted a zero-balance statement to sell the property, arguing all assessments had been paid. The Respondent refused to provide this, contending that while the assessments were paid, there was still an outstanding balance for legal fees incurred during the collection process, which the Petitioner disputed as unreasonable and resulting from the Respondent’s own mistakes.

9. The Petitioner sent multiple meeting requests in December 2021 to dispute a fee of $3,377. The Respondent ultimately canceled the meeting with the homeowner and held one with only the board members, citing COVID-19 and the use of Zoom, even though previous meetings had been held via Zoom.

10. In the final decision dated October 11, 2022, the ALJ concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256. This was because there was no recorded lien against the property at the time of the petition or hearings, and thus no active enforcement action for the OAH to adjudicate.

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Suggested Essay Questions

1. Trace the complete timeline of the dispute, starting from the initial delinquency prior to May 2019 through the final OAH decision in October 2022. Detail the key financial figures, legal actions, and communications from both parties at each significant stage.

2. Analyze the central legal arguments presented by both the Petitioner and the Respondent. Discuss the merits of the Petitioner’s claim regarding A.R.S. § 33-1256 and explain in detail the jurisdictional reasoning used by the Administrative Law Judge to dismiss the petition.

3. Examine the various financial discrepancies present throughout the source documents, including the differing amounts cited in notices, the lien filing, attorney letters, and account ledgers. How did these inconsistencies contribute to the escalation of the conflict and the accumulation of legal fees?

4. Discuss the role of the Respondent’s law firm, Mulcahy Law Firm, P.C., in this dispute. Based on the provided emails and legal documents, evaluate their advice to the Association and their actions regarding the lien and collection process.

5. Critically evaluate the communication and resolution attempts between the Petitioner and the Respondent’s board outside of the formal legal proceedings. What do the emails and hearing testimony reveal about their efforts to resolve the dispute directly?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings for government agencies, such as the Office of Administrative Hearings. In this case, Tammy L. Eigenheer served as the ALJ.

A.R.S. § 33-1256

The specific Arizona Revised Statute cited by the Petitioner. This statute pertains to liens for assessments in condominiums, including provisions for reasonable collection and attorney fees associated with such liens.

Assessment

A mandatory fee paid by condominium owners to the homeowners’ association (HOA) for the maintenance of common elements and other association expenses.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any harm has occurred. The OAH stated it had no jurisdiction to issue such a judgment on the legal fees.

Department of Real Estate (ADRE)

The Arizona state agency responsible for licensing and regulating the real estate industry. Its functions include the Homeowners Association Dispute Resolution process.

A legal claim or hold on a property as security for a debt. In this case, the Condominium Association placed a lien on the Petitioner’s unit for unpaid assessments and fees.

Office of Administrative Hearings (OAH)

An independent Arizona state agency authorized to conduct hearings in contested matters for other state agencies, ensuring a fair and impartial process.

Petitioner

The party who files a petition initiating a legal case or administrative hearing. In this matter, the petitioner is the homeowner, Asmaa Kadhum.

Preponderance of the evidence

The standard of proof in most civil and administrative cases. It requires the party with the burden of proof (the Petitioner in this case) to show that their claim is more likely true than not.

Rehearing

A second hearing of a case to re-examine the issues and evidence. In this matter, a rehearing was granted after the initial April 4, 2022 hearing.

Release of Lien

A legal document that removes a previously recorded lien on a property. The Respondent recorded a Release of Lien on November 13, 2020, after acknowledging the original lien amount was incorrect.

Respondent

The party against whom a petition is filed. In this matter, the respondent is the Goldcrest Patio Homes Condominium Association.

5 Shocking Lessons from a Homeowner’s Two-Year War with Her HOA

Introduction: The Notice on the Door

It’s a moment many homeowners dread: finding an official notice from the Homeowner’s Association (HOA) taped to the front door. For most, it’s a minor issue—a reminder about lawn care or trash cans. But for homeowner Asmaa Kadhum, a notice in April 2020 regarding approximately $1,400 in past-due assessments was the first step in a spiraling, multi-year legal war with her Goldcrest Patio Homes Condominium Association.

What began as a manageable debt quickly escalated into a complex battle involving property liens, lawyers, and a dispute over thousands of dollars in legal fees. The case of Kadhum versus her HOA serves as a powerful cautionary tale, revealing several surprising and counter-intuitive truths about the high-stakes world of HOA disputes.

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1. You Can Win the Battle Over a Lien, But Still Owe the Fees

One of the central ironies of this case is how a clear victory on one front failed to end the war. After the homeowner fell behind on assessments, the HOA’s collection efforts caused the initial $1,435 dispute to snowball. On June 15, 2020, the HOA placed a lien on her property for $2,199. The homeowner disputed the lien’s accuracy, arguing that it contained errors.

Ultimately, she was proven correct. The HOA was forced to record a Release of Lien on November 13, 2020. This should have been the end of it, but here’s the twist: even with the lien gone, the HOA maintained that the homeowner was still responsible for approximately $3,500 in legal fees that had been incurred during the process of trying to collect the original debt. This reveals a crucial distinction in HOA law: getting an improper lien removed from your property title doesn’t automatically erase the associated collection costs from the HOA’s ledger. The manageable debt had now become a much larger problem.

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2. A Legal Technicality Can Get a Valid Complaint Dismissed

The homeowner, now facing a bill for thousands in legal fees related to a lien the HOA admitted was flawed, took her case to the Arizona Department of Real Estate. This move, however, highlights a critical strategic error. She filed her petition on January 12, 2022, alleging a violation of statute A.R.S. § 33-1256, which governs HOA liens and the reasonableness of the fees associated with them.

This led to a procedural “Catch-22” that doomed her case. The problem was timing. The HOA had released the improper lien on November 13, 2020—a full 14 months before the homeowner filed her petition. The case hinged on a procedural nuance that many homeowners might overlook: the statute she cited applies exclusively to active liens. Since the target of her complaint no longer existed by the time of the April 2022 hearing, the judge had no jurisdiction.

The Administrative Law Judge explained this jurisdictional trap in plain English:

and if there was a lien on your property right now, I could look at it and say whether or not the collection fees were appropriate, were reasonable. There isn’t one, so there’s nothing for me to evaluate.

The homeowner’s complaint about the fees might have had merit, but because she legally tied it to a violation that was no longer active, the court’s hands were tied. A different legal approach, perhaps focused on disputing the fees in another venue, may have been necessary.

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3. Correcting an Error Doesn’t Erase the Cost of Making It

The homeowner’s core argument was simple and relatable: why should she be forced to pay for the HOA’s mistakes? This question became even more pointed when documents revealed the HOA’s own attorney admitting the error. The attorney explained that the lien was released because it “included late fee charges that were found to be invalid” and the release was done to protect the association from a “potential false lien claim.”

During the hearing, the homeowner put the fundamental question to the judge: “Why… do we have to pay for their mistakes?”

Despite the HOA’s admission of error, the legal fees incurred during the entire collections process—including the work related to filing and defending the faulty lien—remained on her account. The situation reached a shocking climax during the hearing. When the judge reviewed the case, he noted that the HOA’s own representative, Mr. Latschar, “was uncertain where the $3,500.00 total originated.” The homeowner was being held liable for a debt that even her creditor couldn’t fully explain.

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4. A Disputed Debt Can Haunt a Property Sale

Even after the lien was officially released, the homeowner found herself in a financial vise. As she explained in the hearing, she wanted to sell her property and needed a formal statement from the HOA showing a zero balance to provide to potential buyers and title companies.

However, because the HOA’s books still showed she owed thousands in disputed legal fees, they would not provide this statement. This situation highlights the immense leverage an HOA maintains during a property conveyance. The dispute created a “phantom debt”—not an active lien recorded with the county, but a disputed balance on a ledger that can effectively halt a sale. The judge acknowledged this limbo, describing the amount as “just a number on a ledger.”

Yet, that number is a powerful barrier. Title insurance companies, which are essential for nearly all property sales, will not issue a clear policy if there is a known, unresolved financial dispute with an HOA. This gives the association the power to delay or prevent a sale, even without an active lien on the property.

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5. Small Communication Failures Lead to Big Legal Bills

This entire conflict escalated because of a pattern of communication failures that eroded trust long before lawyers were involved. Records show the friction began as early as November 2019, with the homeowner claiming disputes over incorrect receipts and the HOA’s alleged failure to waive late fees as promised.

The situation came to a head in April 2020. When the homeowner received the collection notice, she responded via email, stating it was “not a good timing for collections” due to the pandemic and that she planned to pay the full amount “after this pandemic goes away.” Instead of working toward a formal payment agreement, the HOA proceeded with legal action. The homeowner later claimed she tried to schedule meetings with the board to resolve the matter directly but “was never responded to.”

These failures in communication and negotiation were the direct catalyst for involving lawyers. That decision is what caused the debt to balloon from the original $1,435 to a prolonged, stressful, and expensive dispute over thousands in legal fees.

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Conclusion: A Pyrrhic Victory?

The ordeal of Asmaa Kadhum offers critical lessons for any homeowner in an HOA. It demonstrates that in these disputes, legal technicalities matter immensely, clear communication is non-negotiable, and winning a single battle doesn’t mean you’ve won the war. Even when a homeowner is “right” on a key point—like forcing the removal of an improper lien—they can still face significant and lasting financial consequences.

This case leaves every homeowner with a final, thought-provoking question to ponder: When facing a dispute with an HOA, how do you know when to fight for what’s right versus when to avoid a battle that might cost you more than you stand to gain?

Case Participants

Petitioner Side

  • Asmaa Kadhum (petitioner)
    Filed the petition and appeared on her own behalf,
  • Mazin Ahmed (co-owner)
    Referenced as part of 'Petitioner' definition; much of the correspondence was from/to him

Respondent Side

  • Jerry Latschar (board member)
    Goldcrest Patio Homes Condominium Association
    Vice President of the Board of Directors, appeared on behalf of Respondent

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Aganeer,,,
  • Louis Dettorre (Commissioner ADRE)
    Arizona Department of Real Estate
  • Miranda Alvarez (legal secretary)
    Transmitted decision
  • c. serrano (administrative staff)
    Transmitted minute entry

Joshua M Waldvogel v. Sycamore Estate Parcel 13 Community 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 21F-H2121044-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-12-15
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge, upon rehearing, affirmed the denial of the petition, concluding that the Respondent HOA timely denied the Petitioner's architectural application. The timeline for a decision did not start until October 6, 2020, when the application was considered complete, making the November 19, 2020, denial valid.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joshua M. Waldvogel Counsel —
Respondent Sycamore Estate Parcel 13 Community Association Counsel Nicole Payne

Alleged Violations

A.R.S. § 33-1817(B)(3); CC&Rs Article VI, Section 6.5

Outcome Summary

The Administrative Law Judge, upon rehearing, affirmed the denial of the petition, concluding that the Respondent HOA timely denied the Petitioner's architectural application. The timeline for a decision did not start until October 6, 2020, when the application was considered complete, making the November 19, 2020, denial valid.

Why this result: Petitioner lost because the interpretation of the CC&Rs stipulated that the 60-day timeline starts only upon receipt of a complete application, which the ALJ determined was October 6, 2020.

Key Issues & Findings

Whether the architectural application for a casita was deemed approved due to the HOA missing the 60-day denial deadline.

Petitioner claimed his architectural application, submitted September 15, 2020, was deemed approved because the Denial Notice (November 19, 2020) occurred after the 60-day deadline (November 14, 2020). The ALJ determined that the 60-day period did not begin until the Application was complete with supporting information (October 6, 2020), making the deadline December 5, 2020, and the denial timely.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • Johnson v. The Pointe Community Association
  • Powell v. Washburn
  • A.R.S. § 33-1817(B)(3)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

Analytics Highlights

Topics: Architectural Review, Deemed Approval, HOA Timeline Compliance, CC&R Interpretation, Rehearing
Additional Citations:

  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • A.R.S. § 33-1817(B)(3)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

Video Overview

Audio Overview

Decision Documents

21F-H2121044-REL-RHG Decision – 933158.pdf

Uploaded 2026-01-23T17:37:31 (106.1 KB)

21F-H2121044-REL-RHG Decision – ../21F-H2121044-REL/900658.pdf

Uploaded 2026-01-23T17:37:34 (103.7 KB)

Briefing on Waldvogel v. Sycamore Estate Parcel 13 Community Association

Executive Summary

This briefing synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Joshua M. Waldvogel (Petitioner) and the Sycamore Estate Parcel 13 Community Association (Respondent). The core of the conflict was the Petitioner’s application to build a second house, or “casita,” on his property, which was denied by the association’s Architectural Committee (ARC).

The central legal question was procedural: the timing of the association’s denial. The Petitioner argued that the 60-day review period stipulated in the community’s Covenants, Conditions, and Restrictions (CC&Rs) began when he submitted his initial application on September 15, 2020. By this calculation, the association’s November 19, 2020 denial was late, and his application should have been “deemed approved.”

The Respondent countered that the 60-day clock only began after the Petitioner provided a response to a request for additional information on October 6, 2020, making the application complete on that date. This would make the November 19 denial timely.

Administrative Law Judge Tammy L. Eigenheer presided over both an initial hearing and a subsequent rehearing. In both instances, the Judge ruled in favor of the Respondent, finding that the application was not complete until the requested information was provided. The denial was therefore timely and valid. The Petitioner failed to prove that the association violated its governing documents, and his petition was denied in both the initial decision and the final, binding decision on rehearing.

Case Background

• Case Numbers: 21F-H2121044-REL & 21F-H2121044-REL-RHG

• Presiding Judge: Administrative Law Judge Tammy L. Eigenheer

• Petitioner: Joshua M. Waldvogel, owner of Lot 228 at 11208 North 164th Lane, Surprise, Arizona 85388.

• Respondent: Sycamore Estate Parcel 13 Community Association (Sycamore Estates), a homeowners association in Surprise, Arizona.

• Core Issue: Petitioner sought approval from the Sycamore Estates Architectural Committee (ARC) to build a casita on his property. The ARC denied the application. The dispute centers on whether the denial was issued within the 60-day timeframe mandated by the community’s CC&Rs.

Chronology of Key Events

September 15, 2020

Petitioner submits an architectural application to build a casita.

October 5, 2020

Sycamore Estates requests additional information, specifically the required permits for the construction.

October 6, 2020

Petitioner emails a response, stating his architect verified compliance with city “laws” but does not provide permits.

November 13, 2020

The ARC reviews the application and decides to deny it based on CC&Rs Article V, Section 5.2.

November 14, 2020

The date the Petitioner asserts the 60-day deadline for a decision expired.

November 19, 2020

Sycamore Estates issues the official Denial Notice to the Petitioner.

December 5, 2020

The date the Respondent asserts the 60-day deadline for a decision expired.

July 12, 2021

Initial administrative hearing is held.

August 2, 2021

Initial decision is issued, denying the Petitioner’s petition.

November 29, 2021

A rehearing is held at the Petitioner’s request.

December 15, 2021

Final decision on rehearing is issued, again denying the Petitioner’s petition.

Central Arguments of the Parties

Petitioner’s Position (Joshua M. Waldvogel)

• The 60-day timeline for the ARC to approve or deny the application began on the initial submission date of September 15, 2020.

• The deadline for the ARC’s decision was therefore November 14, 2020.

• The association’s request for additional information on October 5, 2020, did not “reset” or pause this timeline.

• Because the Denial Notice was not issued until November 19, 2020, five days after the deadline, the application should be considered “deemed approved” as per the CC&Rs.

• During the rehearing, the Petitioner also argued that Sycamore Estates could only require information listed on the standard submission form.

Respondent’s Position (Sycamore Estates)

• The application was not considered complete until the Petitioner responded to the request for additional information.

• The response, received on October 6, 2020, marked the start of the 60-day review period.

• The deadline for a decision was therefore December 5, 2020.

• The Denial Notice, issued on November 19, 2020, was well within this timeframe and was therefore valid.

Governing Documents and Legal Principles

The case revolved around the interpretation of the Sycamore Estates CC&Rs, which function as a binding contract between the homeowner and the association.

Key CC&R Provisions

• Article VI, Section 6.5 (Application for Approval): This section contains the critical language that formed the basis of the Judge’s decision. It states that the 60-day review period begins:

• Article V, Section 5.2 (Building Type and Size): This section provided the substantive basis for the ARC’s denial of the casita, as it specifies:

Legal Standard

• Burden of Proof: The Petitioner, as the party asserting the claim, had the burden of proof.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contract Interpretation: In Arizona, unambiguous restrictive covenants (like the CC&Rs) are enforced to give effect to the intent of the parties.

Rulings and Judicial Rationale

The Administrative Law Judge consistently sided with the Respondent’s interpretation of the CC&Rs in both the initial hearing and the rehearing.

Initial Hearing and Decision (August 2, 2021)

• Finding: The Judge concluded that the application was not complete until the Petitioner provided his response on October 6, 2020.

• Rationale: Based on the language in Article VI, Section 6.5, the 60-day clock does not start until the application and all supporting information have been submitted. The association’s request for permits was a reasonable part of gathering this supporting information.

• Conclusion: The November 19, 2020 Denial Notice was issued prior to the December 5, 2020 deadline and was therefore valid. The Judge ordered that the “Petitioner’s petition is denied.”

Rehearing and Final Decision (December 15, 2021)

• Basis for Rehearing: The Petitioner requested a rehearing, alleging the initial decision was an “abuse of discretion.” His written basis was:

• Rehearing Arguments: During the rehearing, the Petitioner acknowledged that the Findings of Fact in the initial decision were not in error and presented the same legal arguments as before.

• Final Ruling: The Judge’s conclusion remained unchanged. Upon consideration of all evidence from the rehearing, the Judge again found that the application was not complete until October 6, 2020, and the denial was timely.

• Final Order: The Judge concluded that the “Petitioner failed to establish that Respondent failed to comply with its CC&Rs” and again ordered that the “Petitioner’s petition is denied.” This order was designated as binding on the parties, with any further appeal requiring judicial review in superior court.

Study Guide: Waldvogel v. Sycamore Estate Parcel 13 Community Association

This study guide provides a comprehensive review of the administrative case between homeowner Joshua M. Waldvogel and the Sycamore Estate Parcel 13 Community Association. The materials are derived from the Administrative Law Judge Decisions issued on August 2, 2021, and December 15, 2021.

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Part I: Short Answer Quiz

Instructions: Answer the following ten questions based on the provided case documents. Each answer should be two to three sentences in length.

1. Who were the petitioner and the respondent in this case, and what specific project was the petitioner seeking approval for?

2. What was the central procedural dispute regarding the timeline for the respondent’s decision on the application?

3. According to the community’s CC&Rs, what is the consequence if the Architectural Committee fails to approve or disapprove an application within the specified timeframe?

4. On what substantive grounds did the Sycamore Estates Architectural Committee ultimately base its decision to deny Mr. Waldvogel’s application?

5. What key date did the petitioner, Mr. Waldvogel, argue was the start of the 60-day review period, and what was his reasoning?

6. What key date did the respondent, Sycamore Estates, argue was the start of the 60-day review period, and what was its reasoning?

7. What was the Administrative Law Judge’s conclusion in the initial hearing decision issued on August 2, 2021?

8. On what basis did the petitioner request a rehearing after the initial decision was rendered against him?

9. During the rehearing, did the petitioner introduce new evidence or arguments, or did he challenge the established Findings of Fact?

10. What legal standard of proof was required in this administrative hearing, and which party held the burden of proof?

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Part II: Answer Key

1. The petitioner was Joshua M. Waldvogel, the record owner of Lot 228. The respondent was the Sycamore Estate Parcel 13 Community Association. Mr. Waldvogel was seeking approval for a plan to build a second house, or casita, on his property.

2. The central dispute was determining when the 60-day timeline for the Architectural Committee’s decision officially began. The petitioner argued it started upon the initial application submission, while the respondent contended it began only after a request for additional information was answered, thereby making the application “complete.”

3. Article VI, Section 6.5 of the CC&Rs states that if the committee fails to act within sixty days after a complete application and all supporting information have been submitted, “approval will not be required and this Section will be deemed to have been complied with by the Owner.”

4. The committee denied the application based on Article V, Section 5.2 of the CC&Rs. This section explicitly prohibits the construction of more than “one detached Single Family Residence” on any lot.

5. The petitioner argued the 60-day review period began on September 15, 2020, the date he submitted his initial architectural application. This would have set the deadline at November 14, 2020, making the November 19 Denial Notice late and rendering the application “deemed approved.”

6. The respondent argued the 60-day period began on October 6, 2020, the date the petitioner responded to their request for additional information (permits). Sycamore Estates maintained the application was not complete until that response was received, which would set the deadline at December 5, 2020.

7. The Administrative Law Judge concluded that the application was not complete until the petitioner provided a response to the October 5 request for information. Therefore, the Denial Notice issued on November 19, 2020, was timely and valid, and the petitioner’s petition was denied.

8. The petitioner requested a rehearing on the grounds that the initial decision was “arbitrary, capricious, or an abuse of discretion.” His written statement argued that the CC&Rs do not explicitly state that the review timeline restarts upon a request for more information.

9. No, the petitioner did not introduce new arguments. He presented the same arguments during the rehearing as he had in the initial hearing and acknowledged that the Findings of Fact from the first decision did not contain any errors, choosing only to argue their legal effect.

10. The standard of proof was a “preponderance of the evidence.” The petitioner, as the party asserting a claim, had the burden of proof to establish that the respondent violated the governing documents.

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Part III: Essay Questions

Instructions: The following questions are designed for deeper analysis of the case. Formulate comprehensive essay responses that synthesize facts and legal principles from the source documents.

1. Analyze the significance of Article VI, Section 6.5 of the CC&Rs, specifically the clause “together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it.” How did the interpretation of this specific language become the central legal issue of the case, and why was it determinative of the outcome?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decisions. Explain which party had the burden of proof and evaluate how the Administrative Law Judge applied this standard to the undisputed facts of the case to reach her conclusions in both the initial hearing and the rehearing.

3. The petitioner’s proposed casita was ultimately denied on the substantive grounds that it violated Article V, Section 5.2 of the CC&Rs. Why did the legal proceedings focus almost entirely on the procedural issue of the decision timeline rather than the substantive prohibition of a second residence on the lot?

4. Examine the petitioner’s basis for requesting a rehearing and the Commissioner’s decision to grant it. Despite the rehearing being granted, the Administrative Law Judge’s decision remained unchanged. Discuss the effectiveness of the petitioner’s arguments during the rehearing process as described in the legal documents.

5. The legal decisions state that CC&Rs are a contract between the parties and that unambiguous restrictive covenants must be enforced to give effect to the parties’ intent. Based on the details provided in this case, explain how the principles of contract law were applied to resolve the dispute between Mr. Waldvogel and the Sycamore Estates association.

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Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues legally binding decisions. In this case, Tammy L. Eigenheer.

Application

The comprehensive and detailed written request submitted by a homeowner to the Architectural Committee for approval of construction, alteration, or other improvements that would alter the exterior appearance of the property.

Architectural Committee (ARC)

The committee within the Sycamore Estates Community Association responsible for reviewing and approving or denying modifications to lots to ensure compliance with the CC&Rs and Design Guidelines.

Burden of Proof

The obligation of a party in a legal case to provide evidence to prove their claims. In this matter, the petitioner had the burden of proof.

Casita

A small, secondary house or guesthouse. This was the type of structure Mr. Waldvogel sought to build on his property.

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

A legally binding document that governs a planned community or subdivision. The courts treat it as a contract between the homeowners’ association and the property owners.

Denial Notice

The official written communication from the homeowners’ association (Sycamore Estates) informing a homeowner (Mr. Waldvogel) that their architectural application has been formally denied.

Petitioner

The party who initiates a legal action by filing a petition seeking a legal remedy. In this case, homeowner Joshua M. Waldvogel.

Preponderance of the Evidence

The standard of proof in this matter, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Property

The specific lot owned by the petitioner, identified as Lot 228 of Sycamore Estates, located at 11208 North 164th Lane, Surprise, Arizona 85388.

Respondent

The party against whom a petition is filed and who must respond to the claims. In this case, the Sycamore Estate Parcel 13 Community Association.

Restrictive Covenant

A provision within the CC&Rs that limits the use of property. Article V, Section 5.2, which prohibits more than one detached residence per lot, is an example of a restrictive covenant.

He Tried to Use a 60-Day Deadline to Beat His HOA. Here’s What the Judge Decided.

Introduction: The Waiting Game

You’ve done the research, hired the architect, and finally submitted your home improvement plans to the Homeowners Association (HOA). Now, the waiting game begins. The days tick by, and you start wondering: What happens if they miss their own deadline to respond? Can you just start building?

A recent administrative law case in Arizona provides a fascinating and cautionary answer to this very question. It serves as a stark reminder that your community’s governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—are a legally binding contract, and assumptions about deadlines can lead to a losing battle.

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The Core of the Dispute: A Casita and a Calendar

The case involved Joshua M. Waldvogel, a homeowner in the Sycamore Estates community in Surprise, Arizona. His goal was to build a second house, or “casita,” on his property.

The conflict centered on a simple timeline. Waldvogel submitted his application on September 15, 2020. He argued the HOA had 60 days to respond, making the deadline November 14. When the HOA sent its denial on November 19, Waldvogel claimed that because the denial was late, his project was automatically “deemed approved.” This dispute over a five-day difference escalated to an administrative law hearing. Here are the key takeaways from the judge’s decision that every homeowner should understand.

1. The 60-Day Clock Doesn’t Start Until Your Application is “Complete”

The homeowner believed the 60-day review clock started the moment he sent his initial application. The judge, however, disagreed based on the precise wording in the HOA’s CC&Rs—the binding contract governing the community.

The power was in the fine print. Article VI, Section 6.5 of the CC&Rs stated:

In the event that the Architectural Committee fails to approve or disapprove an Application for approval within sixty (60) days after the Application, together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it, approval will not be required…

This single clause was the linchpin of the entire case. On October 5, the HOA requested additional information—specifically, the appropriate permits for the proposed construction. The next day, the homeowner responded, but according to the case findings, he “did not provide any permits as requested.” Instead, he emailed to confirm that his architect had verified the plans complied with city “laws.”

The judge ruled that the 60-day clock never started on September 15 because the application wasn’t yet “complete.” The HOA’s simple request for more information was the pivotal event. It established that the official start date for the review period was October 6, the day the homeowner provided his response. This made the November 19 denial well within the required timeframe. The crucial lesson here is that an HOA’s request for information can determine the official start date of their review, regardless of when you first submitted paperwork.

2. The Underlying Rules Are Your Biggest Hurdle

The entire legal battle focused on the procedural timeline—when the HOA denied the project. But in a twist of irony, the substance of the project—what was being proposed—was a non-starter from the beginning.

Even if the homeowner had won his argument about the deadline, his project was in direct violation of another core rule. Article V, Section 5.2 of the CC&Rs clearly stated:

No building shall be constructed or permitted to remain on any lot other than one detached Single Family Residence…

The homeowner fought and lost a battle over how he was denied, when the rules clearly stated his casita project was never going to be approved in the first place. This highlights a critical point: winning a procedural argument is meaningless if your project fundamentally violates the community’s substantive rules.

3. You Can Appeal, But It’s an Uphill Battle

After losing the initial hearing, the homeowner filed for a rehearing, claiming the judge’s decision was an “abuse of discretion.” The appeal, however, only solidified the original outcome and underscored the difficulty of such challenges.

The legal record from the rehearing is particularly telling. The judge noted two critical facts: first, the petitioner “acknowledged that the Findings of Fact set forth in the underlying decision in this matter did not include any errors.” Second, he “presented the same arguments during the rehearing that he provided during the initial hearing.”

In essence, the homeowner appealed without disputing the established facts and by using the same legal argument that had already failed. Unsurprisingly, the judge’s decision remained the same, and the petition was denied again. This serves as a potent reminder that challenging an HOA’s interpretation of its own governing documents can be a difficult, expensive, and often fruitless endeavor.

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Conclusion: Read the Fine Print Before You Dream

This case serves as a powerful lesson for every homeowner living under an HOA. Your community’s CC&Rs are a binding contract, and the specific language within them holds immense power. Assumptions about procedures, deadlines, and what you’re allowed to build can be costly mistakes.

It all boils down to one final, critical question: When was the last time you read your community’s governing documents, and what crucial detail might be waiting in the fine print?

Case Participants

Petitioner Side

  • Joshua M. Waldvogel (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Represented Respondent
  • Carlotta L. Turman (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Addressed during initial decision transmission
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Addressed during rehearing decision transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission

Daniel B Belt v. Beaver Valley Improvement Association

Posted on by

Case Summary

Case ID 21F-H2121058-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-03-11
Administrative Law Judge Sondra J. Vanella
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Daniel B Belt Counsel —
Respondent Beaver Valley Improvement Association Counsel Ellen B. Davis, Esq.

Alleged Violations

No violations listed

Outcome Summary

The Administrative Law Judge issued an Order dismissing the Petitioner’s Petition because the Petitioner failed to appear at the hearing on March 10, 2022, and thus failed to meet the burden of proof.

Why this result: Petitioner failed to appear for the hearing. Petitioner had previously indicated he would unequivocally not participate in the hearing.

Key Issues & Findings

Petition alleging violation

Petitioner failed to appear for the hearing and thus failed to sustain the burden of proof required to establish the alleged violation.

Orders: Petitioner’s Petition is dismissed because Petitioner failed to appear for the hearing and failed to sustain the burden of proof.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA, failure_to_appear, dismissal, rehearing, OAH
Additional Citations:

  • 41-1092.07(G)(2)
  • R2-19-119(A)
  • R2-19-119(B)(1)
  • 32-2199.02(B)
  • 12-904(A)
  • 41-1092.01
  • 41-1092.07(A)

Video Overview

Audio Overview

Decision Documents

21F-H2121058-REL Decision – 936420.pdf

Uploaded 2026-04-24T11:36:34 (52.8 KB)

21F-H2121058-REL Decision – 936523.pdf

Uploaded 2026-04-24T11:36:37 (6.7 KB)

21F-H2121058-REL Decision – 942810.pdf

Uploaded 2026-04-24T11:36:41 (53.5 KB)

21F-H2121058-REL Decision – 954077.pdf

Uploaded 2026-04-24T11:36:46 (66.4 KB)

21F-H2121058-REL Decision – 915454.pdf

Uploaded 2026-04-24T11:36:49 (133.6 KB)

Briefing Document: Daniel B. Belt v. Beaver Valley Improvement Association

Executive Summary

This document synthesizes the proceedings and outcomes of the administrative case Daniel B. Belt v. Beaver Valley Improvement Association (No. 21F-H2121058-REL), a dispute adjudicated by the Arizona Office of Administrative Hearings. The petitioner, Daniel B. Belt, alleged that the Beaver Valley Improvement Association (BVIA) violated Arizona statute A.R.S. § 33-1812(6) by refusing to provide him with unredacted copies of election ballots, a matter he characterized as “voter fraud” and of “life and death” importance.

The case was ultimately dismissed twice. The initial decision on October 5, 2021, dismissed the petition on its merits. The Administrative Law Judge (ALJ) found that the petitioner failed to prove a violation, concluding that the HOA’s community documents permitted secret ballots and that state law (A.R.S. § 33-1805(B)(4)) prohibited the disclosure of the personal voting information requested. Following the petitioner’s request for a rehearing, the case was dismissed a second time on March 11, 2022, after the petitioner failed to appear at the scheduled hearing, thereby failing to meet his burden of proof.

A significant theme throughout the proceedings was the petitioner’s conduct. Testimony from the HOA’s accounting services provider, Planned Development Services (PDS), described the petitioner’s behavior as “irrational, mean, and bullying.” This conduct included a 45-day picket of the PDS office, verbal threats, and behavior that led PDS to obtain an Injunction Against Workplace Harassment against the petitioner and ultimately resign its contract with the HOA. After the initial dismissal, the petitioner filed pleadings demanding that the Director of the Office of Administrative Hearings act in an “appellate capacity” to “dispense justice,” a request the Director found he had no legal authority to grant. The petitioner also indicated his intent to not participate in the rehearing and to pursue the matter in federal court.

I. Case Overview and Procedural History

The Core Dispute: Access to Election Ballots

On June 8, 2021, Daniel B. Belt filed a Homeowners Association (HOA) Dispute Petition with the Arizona Department of Real Estate. The petition alleged a single violation by the Beaver Valley Improvement Association of A.R.S. § 33-1812(6), a statute governing election materials.

The specific allegation, as articulated in the petition narrative, was that “…PDS refused to give petitioner the ballots containing the names, addresses and signatures, in compliance with ARS 33-1812(6)…”. The petitioner asserted that his petition, which he characterized as addressing “voter fraud,” was a “life and death matter.”

Key Parties

Name/Entity

Representation/Affiliation

Petitioner

Daniel B. Belt

Appeared on his own behalf

Respondent

Beaver Valley Improvement Association

Represented by Ellen B. Davis, Esq.

Witness (Initial Hearing)

Petra Paul

Managing Agent, Planned Development Services (PDS)

Witness (Initial & Final Hearing)

William Campbell

Member, BVIA Board of Directors

Administrative Law Judge

Sondra J. Vanella

Office of Administrative Hearings

Director

Greg Hanchett

Office of Administrative Hearings

Procedural Timeline

• June 8, 2021: Petitioner Daniel B. Belt files a petition with the Arizona Department of Real Estate.

• September 10, 2021: An initial hearing is held before ALJ Sondra J. Vanella.

• October 5, 2021: ALJ Vanella issues a decision dismissing the petition.

• January 4, 2022: A minute entry is issued continuing a scheduled rehearing to March 10, 2022.

• January 14, 2022: Petitioner files a pleading perceived by the Director as a motion for a change of judge.

• January 28, 2022: Petitioner files a subsequent pleading clarifying he is not seeking a change of judge but is demanding the Director review the prior proceeding.

• January 31, 2022: Director Greg Hanchett issues an order stating he lacks the statutory authority to review the case in an “appellate capacity” as requested.

• March 10, 2022: The rehearing convenes. The petitioner fails to appear. Respondent’s counsel moves for dismissal.

• March 11, 2022: ALJ Vanella issues a final decision dismissing the petition due to the petitioner’s failure to appear and sustain his burden of proof.

II. Analysis of the Initial Hearing and Decision

Respondent’s Defense and Evidence

The BVIA’s defense centered on the established practice and legal basis for maintaining voter privacy through secret ballots. Key points included:

• Policy on Secret Ballots: The BVIA Board of Directors approved a “Ballot/Proxy Handling Procedure” on July 10, 2004, which explicitly states that ballots will be folded “TO MAINTAIN THE SECRECY OF THE BALLOT.”

• Reaffirmation of Policy: In a meeting on May 8, 2021, the Board unanimously passed two motions: one to allow members to review ballots without personally identifying information, and a second to “reaffirm that all Board of Directors elections be conducted with a secret ballot.”

• Bylaws Protecting Privacy: The BVIA’s Bylaws (Article VII) explicitly state that “Personal . . . information about an individual Member of the Association” is not subject to inspection by parties other than the Board or its agent.

• Statutory Protection: Respondent argued that A.R.S. § 33-1805(B)(4) prohibits the disclosure of personal records of an individual member, which includes how they voted.

• Constitutional Basis: Board member William Campbell cited Article VII, Section 1 of the Arizona Constitution, which provides that “secrecy in voting shall be preserved,” opining that non-secret ballots would have a “chilling effect” on member participation.

• Accommodations Offered: The petitioner was offered the opportunity to review the un-redacted ballots in person (but not take copies) and was provided with redacted copies of the ballots. He refused both offers.

Key Witness Testimony

Petra Paul, Managing Agent for PDS, testified that her company’s contract with BVIA was for accounting services only, not HOA management. PDS’s involvement in the election was limited to mailing ballots, collecting returns, and verifying a quorum.

Ms. Paul’s testimony detailed the petitioner’s conduct:

• Escalating Demands: The petitioner demanded ballots before the election (which was denied) and demanded un-redacted copies the Monday after the election.

• Harassment and Intimidation: Ms. Paul described the petitioner’s behavior as “irrational, mean, and bullying.” She testified that his actions grew increasingly agitated, that he refused to leave PDS’s premises, and that PDS staff was intimidated and concerned for their personal safety.

• Workplace Injunction: The petitioner’s behavior, which impacted PDS’s business operations, culminated in PDS obtaining an Injunction Against Workplace Harassment against him. This came after he spent 45 days picketing outside the PDS office with a large sign that stated, “PDS Embezzlers, Frauds, Liars.”

• Threats: The injunction noted threats made by the petitioner against PDS employees, including, “You’ll be sorry,” “You’ll regret this,” and “You haven’t seen the end of me.”

• Contract Resignation: Due to the petitioner’s “abusive and erratic” interactions, PDS resigned its contract with the BVIA and demanded its legal fees be paid by the association.

William Campbell testified about the association’s long-standing policy of secret ballots. He acknowledged a procedural deviation—the ballots were folded for secrecy rather than being placed in manila envelopes as stipulated by the 2004 policy—but maintained that secrecy was preserved. Mr. Campbell also testified that multiple opportunities were provided in May, June, and July 2021 for members to view the ballots and confirm their votes were counted, but no one took advantage of the offers in June or July.

ALJ’s Conclusions of Law and Order (October 5, 2021)

ALJ Vanella concluded that the petitioner failed to prove by a preponderance of the evidence that the BVIA violated A.R.S. § 33-1812(A)(6). The decision found that:

1. The credible evidence established that the ballots were intended to be secret pursuant to community documents.

2. The Respondent was precluded by A.R.S. § 33-1805(B)(4) from disclosing the personal voting information demanded by the petitioner.

3. The petitioner was offered the chance to review the ballots and was provided redacted copies, both of which he declined. Based on these findings, the petition was ordered dismissed.

III. Rehearing Proceedings and Final Disposition

Petitioner’s Post-Decision Filings

Following the initial dismissal, the petitioner requested a rehearing. In subsequent filings, he created confusion regarding his intentions. A January 14, 2022 filing was perceived as a motion for a change of judge. However, in a January 28, 2022 pleading, the petitioner clarified this was not his intent. Instead, he demanded the Director of the Office of Administrative Hearings intervene directly:

“if Director Hanchett declines to make the case, with rationale, that the actions of Petra Paul and ALJ Vanella did not constitute the felony crimes as cited by the Petitioner, and if Director Hanchett declines to dispense justice in this case . . . as outlined by Petitioner, those issues will be decided in federal court.“

He further stated that the Director did not have the right to “pervert Petitioner’s request… for Impartial Justice and Equal Protection of the Laws, into a motion for a Change of Judge.”

Director’s Response

On January 31, 2022, Director Greg Hanchett issued an order rescinding a prior order that required the respondent to reply to the petitioner’s motion. The Director stated that the petitioner was not seeking a change of judge, but rather “seeks to have the Director review the earlier proceeding in some appellate capacity and pass judgment on the propriety of that proceeding.” Director Hanchett concluded that “There is no authority contained in either statute or rule that would permit the Director to undertake such action,” as an administrative agency has only those powers prescribed by law.

The Final Hearing and Dismissal (March 10-11, 2022)

The rehearing was held on March 10, 2022. The petitioner, Daniel Belt, failed to appear, despite having received proper notice at his address of record and email addresses. The hearing transcript notes that the petitioner had previously stated in a January 14 filing that he “would unequivocally not participate in the hearing.”

As the petitioner bears the burden of proof, and having failed to appear to present his case, the respondent’s counsel made a motion to dismiss. ALJ Vanella granted the motion. The final order, issued March 11, 2022, dismissed the petition, stating: “Because Petitioner failed to appear, Petitioner failed to sustain his burden to establish a violation by Respondent.” This decision was binding on the parties.

Study Guide for the Case of Belt v. Beaver Valley Improvement Association

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information presented in the case documents.

1. Identify the petitioner and respondent in this case and state the petitioner’s central allegation.

2. What specific Arizona Revised Statute did the petitioner claim the respondent violated, and what does this statute generally require?

3. What was the role of Planned Development Services (PDS) in the respondent’s election process, according to the testimony of Petra Paul?

4. Describe the petitioner’s behavior that prompted PDS to obtain an Injunction Against Workplace Harassment.

5. According to William Campbell, what was the respondent’s long-standing policy regarding elections, and what documents supported this policy?

6. Explain the two offers the respondent and its agent made to the petitioner to allow him to review the election ballots.

7. What was the Administrative Law Judge’s final order in the initial decision on October 5, 2021, and what were the two key statutes cited to support this conclusion?

8. After filing for a rehearing, what was the petitioner’s stated intention regarding his participation, and what was the ultimate outcome of the March 10, 2022, hearing?

9. What did the petitioner demand from the Director of the Office of Administrative Hearings in January 2022, and how did the Director respond?

10. What evidentiary standard was the petitioner required to meet, and did the judge find that he met this standard in either the initial hearing or the rehearing?

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Answer Key

1. The petitioner was Daniel B. Belt, and the respondent was the Beaver Valley Improvement Association (HOA). Belt alleged the HOA violated state law by refusing to provide him with election ballots containing the names, addresses, and signatures of the voters, an act he characterized as “voter fraud.”

2. The petitioner claimed a violation of A.R.S. § 33-1812(6). This statute requires completed ballots to contain the voter’s name, address, and signature, but it provides an exception for secret ballots, where this identifying information need only appear on the envelope.

3. Petra Paul testified that PDS was contracted for accounting services only, not HOA management. PDS’s involvement in the election was limited to mailing the annual meeting documents, collecting the returned ballots, and reviewing the number of returns to ensure a quorum was met. PDS did not conduct the election or tabulate the ballots.

4. The petitioner’s behavior was described as “irrational, mean, and bullying.” He picketed the PDS office for 45 days with a sign calling employees “Embezzlers, Frauds, Liars,” made threats such as “You’ll be sorry,” and refused to leave the premises, causing employees to fear for their personal safety.

5. William Campbell testified that the respondent had a long-standing practice of using a secret ballot. This was supported by a Ballot/Proxy Handling Procedure approved in 2004 and a unanimous Board vote on May 8, 2021, to reaffirm that all Board of Directors elections would be conducted with a secret ballot.

6. First, Petra Paul of PDS offered the petitioner copies of the ballots with personal information such as names and signatures redacted, which he refused. Paul also offered him the opportunity to review the non-redacted ballots in the office but advised him he could not take them with him.

7. The judge ordered that the petitioner’s Petition be dismissed. The judge cited A.R.S. § 33-1812(A)(6), noting that the community’s documents permitted secret ballots, and A.R.S. § 33-1805(B)(4), which precludes an HOA from disclosing personal records of its members.

8. In a January 14, 2022, filing, the petitioner stated he would “unequivocally not participate in the hearing.” Consequently, the petitioner failed to appear at the March 10, 2022, hearing, and the judge dismissed his petition for failure to sustain his burden of proof.

9. The petitioner demanded that the Director, Greg Hanchett, review the previous hearing in an appellate capacity, determine if felony crimes were committed, and “dispense justice.” The Director responded that he had no statutory authority to perform such an appellate review and rescinded his order related to what he had mistakenly perceived as a motion for a change of judge.

10. The petitioner was required to prove his case by a “preponderance of the evidence.” In the initial hearing, the judge found he failed to meet this burden because the evidence showed the respondent had not violated the law. In the rehearing, he failed to meet the burden because he did not appear to present any evidence at all.

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Essay Questions

Instructions: The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each prompt, incorporating specific details and legal principles from the provided source documents.

1. Analyze the conflict between a member’s right to inspect association records under A.R.S. § 33-1805 and the protection of individual members’ personal information and voting privacy as outlined in the same statute and the association’s bylaws.

2. Discuss the legal concept of “burden of proof” as it applied to the petitioner in both the initial hearing and the subsequent rehearing. How did the petitioner’s actions (and inaction) directly lead to the dismissal of his case on two separate occasions?

3. Evaluate the actions of the Beaver Valley Improvement Association and its agent, PDS, in response to the petitioner’s demands for election materials. Did their responses align with their own bylaws, state law, and established procedures as presented in the hearings?

4. Trace the petitioner’s escalating behavior as described in the testimony of Petra Paul. How did this behavior impact PDS and ultimately factor into the context of the hearing, even if it was not the direct legal violation being adjudicated?

5. Examine the petitioner’s apparent misunderstanding of the administrative legal process, as evidenced by his filings with Director Greg Hanchett. Contrast what the petitioner demanded of the Director with the actual legal authority vested in the Director’s office according to the case documents.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Sondra J. Vanella served as the ALJ.

A.R.S. § 33-1805

An Arizona Revised Statute concerning the examination of a homeowners association’s financial and other records. It grants members the right to inspect records but also allows the association to withhold certain information, including personal records of individual members.

A.R.S. § 33-1812(6)

An Arizona Revised Statute detailing requirements for ballots used in HOA meetings. It mandates that ballots contain the voter’s name, address, and signature, but creates an exception for secret ballots permitted by community documents.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner had the burden to prove the respondent committed the alleged violation.

Bylaws

The official rules and regulations that govern a corporation or association. The respondent’s Bylaws, specifically Article VII, were cited to justify withholding personal member information.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. The Beaver Valley Improvement Association is the HOA in this case.

Injunction Against Workplace Harassment

A court order obtained by an employer to prohibit a person from committing acts of harassment against the business and its employees. PDS obtained one against Daniel B. Belt.

Petitioner

The party who files a petition or initiates a legal action. In this case, Daniel B. Belt is the petitioner.

Planned Development Services (PDS)

An HOA management and accounting company. PDS provided accounting-only services to the respondent and was the entity that interacted directly with the petitioner regarding his ballot requests.

Preponderance of the Evidence

The standard of proof required in this administrative case. It means that the trier of fact must be convinced that it is more probably true than not that the contention is correct.

Quorum

The minimum number of members of an association that must be present at any of its meetings to make the proceedings of that meeting valid. PDS reviewed ballot returns to ensure a quorum was established for the respondent’s election.

Redacted

Edited to remove or obscure confidential or private information. The respondent offered the petitioner redacted copies of the ballots with names, email addresses, and signatures removed.

Rehearing

A second hearing of a case to reconsider the issues and evidence, which may be granted upon request after an initial decision. The petitioner was granted a rehearing but failed to appear.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Beaver Valley Improvement Association is the respondent.

Secret Ballot

A voting method in which a voter’s choices are anonymous, preventing intimidation and protecting privacy. The respondent’s bylaws and policies permitted the use of secret ballots for its elections.

An HOA Ballot Dispute, a 45-Day Picket, and 4 Shocking Lessons in Community Conflict

Introduction: When Neighborly Disagreements Go Nuclear

Disputes within Homeowners Associations (HOAs) are common, often revolving around landscaping, dues, or parking violations. But rarely do they escalate into a nearly year-long legal battle involving workplace harassment injunctions and vendor resignations. The story of one homeowner’s quest for election transparency in Arizona serves as a startling case study in how quickly a simple request can spiral out of control, offering crucial lessons for any community association. What began as a demand to see election ballots ended in a dismissed court case, but not before triggering a workplace harassment injunction, forcing its accounting firm to resign, and handing the HOA the bill for its legal fees.

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1.A Request for Ballots Can Escalate into a Harassment Injunction

The dispute began when petitioner Daniel B. Belt filed a petition against his HOA, the Beaver Valley Improvement Association. Alleging “voter fraud,” he demanded copies of unredacted election ballots in a conflict he framed as a “life and death matter.” When the HOA denied his request for unredacted copies, Mr. Belt’s tactics escalated from formal petitioning to direct, public confrontation aimed at the HOA’s accounting firm, Planned Development Services (PDS).

He picketed the PDS office for 45 consecutive days, holding a large sign that read, “PDS Embezzlers, Frauds, Liars.” According to court documents, he also allegedly made threats to PDS employees, stating, “You’ll be sorry,” “You’ll regret this,” and “You haven’t seen the end of me.” These actions crossed a critical legal line, resulting in PDS obtaining an Injunction Against Workplace Harassment against the petitioner.

This escalation provides a crucial lesson in community governance. The line between passionate advocacy and unlawful harassment is critical because volunteer boards and their essential vendors are uniquely vulnerable. Tactics involving defamatory signage and direct threats don’t just amplify a grievance; they can cripple an association’s ability to function, turning a dispute over records into an existential threat to its day-to-day management.

Ms. Paul described Petitioner’s behavior as “irrational, mean, and bullying” and that she and other employees were concerned for their personal safety.

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2.The “Right to Know” vs. The Right to Privacy and a Secret Ballot

The central conflict pitted one homeowner’s demand for total transparency against the community’s right to privacy. The petitioner insisted on receiving unredacted copies of all completed ballots, which contained the names, addresses, and signatures of every voter.

In response, the HOA did not deny access outright but instead offered a compromise. The petitioner was given the choice to either review the unredacted ballots in person under supervision or accept redacted copies with personal information removed. He refused both options. Notably, the HOA went a step further in its attempt to balance transparency with privacy. Board member William Campbell testified that he “devised a way in which he could match a members’ demographic information to the members’ vote if upon Petitioner’s inspection, something appeared irregular.”

The HOA grounded its refusal in multiple sources of authority, citing its own bylaws protecting member information, a long-standing practice of secret ballots, and, most critically, Arizona state law. A.R.S. § 33-1805(B)(4) explicitly permits an association to withhold the personal records of its members. The Administrative Law Judge ultimately agreed, ruling that the HOA acted correctly and that state law sided with protecting member privacy.

Mr. Campbell referenced Article VII, Section 1 of the Arizona Constitution which provides that “all elections by the people shall be by ballot, or by such other method as may be prescribed by law; Provided, that secrecy in voting shall be preserved.”

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3.Third Parties Can Become Expensive Collateral Damage

This dispute demonstrates how community conflicts can ensnare and inflict significant damage on essential third-party vendors. The accounting firm, PDS, had a limited, non-managerial role. Its contract was for accounting services only; it facilitated the mailing of election documents, collected the returned ballots, and confirmed a quorum was met. PDS did not conduct the election or tabulate the votes.

Despite this narrow involvement, PDS bore the brunt of the petitioner’s aggressive campaign. The harassment severely impacted its business operations and, according to testimony, created an “abusive and erratic” environment. This led the firm to take two drastic steps: first, obtaining the legal injunction, and second, resigning its contract with the HOA. Critically, the collateral damage had a direct financial cost for the entire community. Court documents reveal that “PDS demanded its legal fees be paid by Respondent [the HOA]” for the costs of securing the harassment injunction.

This outcome reveals the cascading governance failures that result from such conflicts. When a key vendor like an accounting firm resigns under duress, it creates instability, raises the prospect of missed payments or financial errors, and makes it harder to secure a new vendor, who may now view the HOA as a high-risk client—with any increased costs ultimately passed on to all homeowners.

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4.You Can’t Win a Legal Battle You Refuse to Fight

In a final, counter-intuitive act, the petitioner successfully filed for a rehearing after losing his initial case, earning a second chance to argue his claims. His actions leading up to the new hearing, however, signaled a preference for performative conflict over substantive legal engagement. He attempted to have the Director of the Office of Administrative Hearings review the case in an “appellate capacity,” a power the Director confirmed he did not possess, and threatened to escalate the matter to federal court.

Then came the final twist. After securing the rehearing, the petitioner submitted a filing stating he would “unequivocally not participate in the hearing.”

True to his word, on the day of the hearing—March 10, 2022—the petitioner failed to appear. As the party bringing the complaint, he carried the burden of proof. His absence meant the judge had no evidence to consider and was compelled to dismiss the case. This chapter serves as a stark lesson in strategic failure. After doing the difficult work of securing a second hearing, the petitioner abandoned the field. The legal system, for all its complexities, responds to procedure and participation, not to external threats or pronouncements. Passionate conviction is powerless if you refuse to show up and fight the battle you initiated.

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Conclusion: Drawing the Line Between Advocacy and Anarchy

The arc of this conflict—from a simple request for ballots to a multi-stage legal dispute that ended not with a bang, but a whimper—is a cautionary tale. It illustrates how a homeowner’s campaign for transparency, when pursued without regard for legal boundaries or civil discourse, can backfire completely. It left a vendor harassed, forced the community to pay its agent’s legal fees, and ultimately left the original issue unresolved. This case leaves all community leaders and members with a critical question: How can we foster a culture that balances the legitimate need for transparency with the equally important need for member privacy and basic civility?

Case Participants

Petitioner Side

  • Daniel B. Belt (petitioner)

Respondent Side

  • Ellen B. Davis (HOA attorney)
    HENZE COOK MURPHY, PLLC
  • William Campbell (board member/witness)
    Beaver Valley Improvement Association
    Vice President of the Board
  • Mexal (board member)
    Beaver Valley Improvement Association
    Identified as President in May 8, 2021 Meeting Minutes
  • Sarah Linkey (board member)
    Beaver Valley Improvement Association
    Identified as Treasurer in May 8, 2021 Meeting Minutes
  • Hallett (board member)
    Beaver Valley Improvement Association
    Identified as Director in May 8, 2021 Meeting Minutes

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
    Listed on initial decision transmission
  • Louis Dettorre (Commissioner)
    ADRE
    Listed on subsequent transmissions
  • Greg Hanchett (Director)
    OAH/ADRE
    Issued order regarding Petitioner's filing
  • c. serrano (administrative staff)
    OAH/ADRE
    Transmitted documents
  • Miranda A. (administrative staff)
    OAH/ADRE
    Transmitted documents

Other Participants

  • Petra Paul (managing agent/witness)
    Planned Development Services (PDS)
    Testified regarding PDS's role with Respondent's election
  • Lori Rutledge (unknown)
    Listed on transmission list
  • Brandee Abraham (unknown)
    Listed on transmission list

Clifford (Norm) Burnes v. Saguaro Crest Homeowners Association, Inc.

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Case Summary

Case ID 21F-H2121051-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-01-03
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford (Norm) Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty

Alleged Violations

ARIZ. REV STAT. 33-1804

Outcome Summary

The ALJ dismissed the Petitioner's complaint, finding that the Respondent HOA did not violate the open meeting law (A.R.S. § 33-1804) because the action was taken without a meeting via unanimous written consent as authorized by A.R.S. § 10-3821.

Why this result: The Petitioner did not meet the burden of proof to show that the alleged violation occurred, as the board acted without holding a formal meeting.

Key Issues & Findings

Violation of open meeting law by taking action via unanimous written consent

Petitioner alleged that the Board of Directors violated the open meeting law (A.R.S. § 33-1804) on May 3, 2020, by taking two actions using unanimous written consent of the Board members, which the Respondent claimed was permissible under A.R.S. § 10-3821 as action without a meeting.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV STAT. 33-1804
  • ARIZ. REV STAT. 10-3821

Analytics Highlights

Topics: HOA, Open Meeting Law, Unanimous Written Consent, Rehearing, Planned Community
Additional Citations:

  • ARIZ. REV STAT. 33-1804
  • ARIZ. REV STAT. 10-3821
  • ARIZ. REV. STAT. 32-2199
  • ARIZ. REV. STAT. 32-2199.02(A)
  • ARIZ. REV. STAT. 41-1092.08
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. 10-3701(F)
  • ARIZ. REV. STAT. 10-3071

Video Overview

Audio Overview

Decision Documents

21F-H2121051-REL Decision – 930803.pdf

Uploaded 2026-04-25T10:08:04 (46.9 KB)

21F-H2121051-REL Decision – 935756.pdf

Uploaded 2026-04-25T10:08:09 (124.8 KB)

21F-H2121051-REL Decision – 899423.pdf

Uploaded 2026-04-25T10:08:15 (101.7 KB)

21F-H2121051-REL Decision – 930803.pdf

Uploaded 2026-04-24T11:35:49 (46.9 KB)

21F-H2121051-REL Decision – 935756.pdf

Uploaded 2026-04-24T11:35:52 (124.8 KB)

21F-H2121051-REL Decision – 899423.pdf

Uploaded 2026-04-24T11:35:56 (101.7 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association

Executive Summary

This briefing document synthesizes the legal proceedings and final decision in the case of Clifford (Norm) Burnes versus the Saguaro Crest Homeowners Association, Inc. (Case No. 21F-H2121051-REL). The core of the dispute was Petitioner Burnes’s allegation that the HOA Board of Directors violated Arizona’s open meeting law for planned communities by taking two official actions on May 3, 2020, without holding a public meeting. The HOA defended its actions, stating that it utilized a provision in the Arizona statutes for non-profit corporations (ARIZ. REV. STAT. § 10-3821) that allows a board to take action “without a meeting” through the unanimous written consent of all directors.

The Administrative Law Judge (ALJ), Thomas Shedden, ultimately ruled in favor of the HOA. The key finding was that no “meeting” as defined by the open meeting law actually occurred on May 3, 2020. Instead, the Board President individually visited other board members to obtain signatures on consent forms. The ALJ concluded that the two relevant statutes—the open meeting law (§ 33-1803/1804) and the action-by-consent statute (§ 10-3821)—are not in conflict. An HOA board can legally use the action-by-consent procedure, but if it chooses to hold a meeting, it must comply with the open meeting law.

Mr. Burnes’s request for a rehearing, which raised several legal and jurisdictional arguments, was granted but ultimately denied on its merits. The ALJ systematically rejected each of Burnes’s arguments, reaffirming the original decision. The final order dismissed Mr. Burnes’s petition, making the HOA the prevailing party.

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Case Overview

• Petitioner: Clifford (Norm) Burnes

• Respondent: Saguaro Crest Homeowners Association, Inc.

• Case Number: 21F-H2121051-REL (and 21F-H2121051-REL-RHG for rehearing)

• Adjudicating Body: Arizona Office of Administrative Hearings

• Administrative Law Judge: Thomas Shedden

• Core Allegation: The Petitioner alleged that on May 3, 2020, the Respondent’s Board of Directors violated Arizona’s open meeting law (cited as ARIZ. REV STAT. § 33-1803 in the initial decision and § 33-1804 in the rehearing decision) by taking two formal actions via unanimous written consent without allowing members to attend and speak.

• Respondent’s Defense: The Respondent acknowledged taking action by unanimous consent but asserted this was permissible under ARIZ. REV. STAT. § 10-3821, which allows for action without a meeting. Therefore, the open meeting law did not apply.

Factual Background and Timeline

1. April 2020: Mr. Burnes and his wife raised two issues with the HOA Board concerning “lot 7,” which is adjacent to their property. The issues were related to a construction bond waiver and the placement of a house on the lot.

2. April 2020 (Post-Complaint): Following the complaint, research was conducted by Jamie Argueta, and emails were exchanged between Mr. Burnes, the Board members, and Mr. Argueta.

3. April 19 & 21, 2020: The Board members met with Mr. and Ms. Burnes to discuss the issues. Minutes were kept for these meetings.

4. Undated Discussions: Board President Esmerelda Sarina Martinez and Board member Mr. Madill had informal discussions with other HOA members, which Ms. Martinez characterized as “neighbors talking and not a meeting.”

5. May 3, 2020: Ms. Martinez, acting alone, drafted two unanimous consent forms. She personally brought the forms and related documents to the homes of the other Board members, who each read the information and signed. The two actions taken by consent were:

◦ Honoring a waiver of the construction deposit for lot 7.

◦ A decision regarding the placement of the home on lot 7.

6. August 29, 2020: The first regularly scheduled Board meeting after the May 3rd actions was held. The meeting minutes did not include an entry showing that the written consent documents had been filed with the corporate records, a requirement of § 10-3281(A).

Procedural History

• May 7, 2021: Mr. Burnes filed his petition with the Arizona Department of Real Estate, initially asserting seven violations but being required to select only one for adjudication due to paying a single fee. He selected the violation of members not being permitted to attend and speak before the Board took formal action on May 3, 2020.

• July 16, 2021: An initial hearing was held before ALJ Thomas Shedden.

• July 28, 2021: The ALJ issued a decision dismissing Mr. Burnes’s petition, finding he had not proven a violation because no meeting occurred on May 3, 2020.

• September 2, 2021 (approx.): Mr. Burnes filed a Rehearing Request.

• September 22, 2021: The Department of Real Estate granted the request for a rehearing.

• December 9, 2021: The ALJ issued an order concluding the rehearing matter, noting that since only legal issues were raised, the decision would be based on the existing record and supplemental briefs (though neither party filed one).

• January 3, 2022: The ALJ issued the final decision on the rehearing, once again dismissing the petition and upholding the original ruling. This order was final and binding, subject to judicial review in the Superior Court.

Analysis of Legal Arguments from Rehearing

In his request for a rehearing, Mr. Burnes raised six primary legal arguments against the initial decision. The ALJ addressed and rejected each one.

Petitioner’s Argument

ALJ’s Analysis and Conclusion

1. Limited Jurisdiction: The ALJ’s jurisdiction is limited to Title 33, Chapter 16 and does not include ARIZ. REV. STAT. § 10-3821.

Rejected. Jurisdiction was proper because Mr. Burnes alleged a violation of § 33-1804 (which is in Title 33, Ch. 16). Nothing prohibits a Respondent from raising defenses from outside Title 33, or the ALJ from considering them.

2. Inapplicability of § 10-3821: The statute for action-by-consent only applies to actions found in Title 10, Chapters 24-40. The actions the HOA took are not found there.

Rejected. The ALJ noted that Mr. Burnes himself acknowledged that “voting” is an action found within those chapters of Title 10, and voting is precisely the action that was taken by unanimous consent.

3. Conflict of Law (§ 10-3701(F)): Statute § 10-3701(F) states that in cases of inconsistency, Title 33 (planned communities) controls over Title 10.

Rejected. This analysis is flawed because § 10-3701(F) applies specifically to membership meetings (Title 10, Ch. 30). The statute for action by consent, § 10-3821, deals with directors’ meetings and is in a different chapter (Title 10, Ch. 31), which has no similar provision. The legislature’s choice to include this provision for membership meetings but not for board meetings indicates an intent to allow boards more latitude to act by consent.

4. Specific vs. General Statute: § 33-1804 is specific to planned communities and should control over § 10-3821, which applies to all non-profits. The policy of the state favors open meetings.

Rejected. This principle of statutory construction only applies when statutes are in conflict and cannot both be given effect. Here, they are not in conflict. Both can be given full effect: an HOA may take action without a meeting per § 10-3821, but if a meeting is held, it must follow the open meeting requirements of § 33-1804.

5. Bylaws Are Irrelevant: The ALJ wrongly cited the HOA’s bylaws allowing action-by-consent, because § 33-1804 applies “notwithstanding any provision in the… bylaws.”

Rejected. Mr. Burnes was correct that bylaws do not trump the open meeting law. However, he overlooked that § 10-3821 itself contains an exception: it does not apply if the corporation’s bylaws prohibit action by consent. The finding regarding the bylaws was necessary only to show that this exception did not apply to the HOA, thus making § 10-3821 available to them.

6. A Meeting Did Occur: Mr. Burnes asserted a meeting did take place on May 3, 2020.

Rejected. The ALJ found this position had several flaws: Mr. Burnes cited no evidence from the record to prove discussion occurred on May 3rd; he conflated prior meetings with the events of May 3rd; and he provided no legal authority to show that drawing on past discussions to draft a consent form constitutes a “meeting.” The ALJ also dismissed his reliance on new dictionary definitions not presented at the original hearing.

Key Statutes and Legal Principles

• ARIZ. REV. STAT. § 33-1803 / § 33-1804 (Open Meetings Law):

◦ Mandates that “all meetings of the members’ association and the board of directors… are open to all members of the association.”

◦ Members “shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

◦ A “quorum of the board of directors that meets informally to discuss association business… shall comply with the open meeting and notice provisions.”

◦ Reflects a state policy that provisions should be construed “in favor of open meetings.”

• ARIZ. REV. STAT. § 10-3821 (Action Without Meeting):

◦ “Unless the articles of incorporation or bylaws provide otherwise, action… to be taken at a directors’ meeting may be taken without a meeting if the action is taken by all of the directors.”

◦ The action must be evidenced by one or more written consents, signed by each director, and included in the minutes filed with corporate records.

◦ A consent signed under this section has “the effect of a meeting vote.”

• Saguaro Crest HOA Bylaws (Section 3.5):

◦ The association’s bylaws explicitly provide directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

Conclusion and Final Order

The Administrative Law Judge concluded that Mr. Burnes failed to meet his burden of proof to show that the Saguaro Crest HOA violated the open meeting law. The central finding was that the HOA’s actions on May 3, 2020, did not constitute a “meeting” but were a legally permissible “action without a meeting” under ARIZ. REV. STAT. § 10-3821. The subsequent rehearing confirmed this legal interpretation.

The final order, issued January 3, 2022, was:

“IT IS ORDERED that Petitioner Clifford (Norm) Burnes’s petition is dismissed.”

The order was final and binding, with any further appeal requiring judicial review by the Superior Court within 35 days.

Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a review of the administrative law case involving Petitioner Clifford (Norm) Burnes and Respondent Saguaro Crest Homeowners Association, Inc. It includes a short-answer quiz, an answer key, essay questions, and a glossary of key terms based on the provided legal decisions.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the information in the case documents.

1. What was the single, specific violation that Clifford (Norm) Burnes alleged against the Saguaro Crest Homeowners Association’s Board of Directors?

2. What was the Respondent’s primary legal justification for the actions its Board of Directors took on May 3, 2020?

3. What two specific decisions did the Board make using the unanimous consent forms on May 3, 2020?

4. According to the Administrative Law Judge (ALJ), how can both the open meeting law (§ 33-1804) and the statute allowing action without a meeting (§ 10-3821) be given effect without being in conflict?

5. What was the purpose of the rehearing granted to Mr. Burnes, and what was the outcome?

6. How did the HOA’s bylaws, specifically section 3.5, support the Respondent’s case?

7. What argument did Mr. Burnes make regarding the ALJ’s jurisdiction to consider ARIZ. REV. STAT. section 10-3821?

8. What is the standard of proof required in this matter, and who bears the burden of meeting it?

9. Mr. Burnes asserted that a meeting did occur on May 3, 2020. What flaws did the ALJ identify in this assertion?

10. What specific requests did Mr. Burnes make in his petition as a remedy for the alleged violation?

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Quiz Answer Key

1. Mr. Burnes’s single alleged violation was that at the “meeting” on May 3, 2020, HOA members were not permitted to attend and speak after discussion but before the Board took formal action. This, he claimed, was a violation of Arizona’s open meeting law, cited as ARIZ. REV STAT. § 33-1803 and later § 33-1804.

2. The Respondent acknowledged taking two actions by consent but argued that no meeting actually occurred. Their defense was that they acted under the authority of ARIZ. REV. STAT. § 10-3821, which explicitly allows a board of directors to take action without a meeting if it is done via unanimous written consent of all directors.

3. The two decisions made via unanimous consent related to issues Mr. Burnes had raised about lot 7, which abuts his property. The first action was to honor a waiver of the construction deposit for lot 7, and the second action was regarding the placement of the home on lot 7.

4. The ALJ reasoned that the statutes are not in conflict because they apply to different situations. Respondent may take action without a meeting as allowed by § 10-3821, but if a meeting is held, Respondent must follow all the requirements of the open meeting law, § 33-1804.

5. Mr. Burnes requested a rehearing, alleging that the initial ALJ decision’s findings of fact were not supported by evidence or were contrary to law. The rehearing was granted to review these legal issues, but the outcome was the same: the ALJ once again concluded that no violation had occurred and dismissed Mr. Burnes’s petition.

6. Section 3.5 of the Association’s bylaws, titled “Action Without a Meeting,” explicitly provides the directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.” This directly supported the Respondent’s claim that its actions were permissible under its own governing documents as well as state law.

7. Mr. Burnes argued that the ALJ’s jurisdiction is limited to Title 33, Chapter 16, and therefore the ALJ had no jurisdiction to consider section 10-3821 as a defense because it is not found in that title. The ALJ rejected this, stating that jurisdiction was proper because the complaint was about a violation of Title 33, and nothing prohibits a respondent from raising defenses from outside that title.

8. The standard of proof is a “preponderance of the evidence.” The Petitioner, Mr. Burnes, bore the burden of proof to show that the alleged violation occurred.

9. The ALJ found several flaws in this assertion: Mr. Burnes did not cite evidence from the record proving a discussion occurred on May 3rd, he conflated prior meetings with the events of May 3rd, and he provided no legal authority showing that prior discussions are pertinent to whether a meeting occurred on that specific day.

10. Mr. Burnes requested that the Respondent be ordered to rescind the consent actions, comply with the open meeting law, pay his filing fee, and be assessed a civil penalty.

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Essay Questions

1. Analyze the central conflict between ARIZ. REV. STAT. § 33-1804 (“Open meetings”) and ARIZ. REV. STAT. § 10-3821 (“Action without meeting”) as presented in this case. Explain the ALJ’s reasoning for concluding that the statutes do not conflict and can both be given effect.

2. Describe the timeline of events leading up to the May 3, 2020 unanimous written consent. How did the meetings and communications in April 2020 between Mr. Burnes and the Board influence the context of the dispute, even though they were not the subject of the final legal violation claim?

3. Evaluate the six specific legal arguments Mr. Burnes raised in his request for rehearing. For each, summarize his point and the ALJ’s counter-argument or legal conclusion.

4. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Explain why the ALJ concluded that Mr. Burnes failed to meet this standard of proof in both the initial hearing and the rehearing.

5. Examine the relationship between state statutes and an association’s governing documents (like bylaws) in this case. How did the ALJ address Mr. Burnes’s argument that § 33-1804 should apply “notwithstanding any provision in the…bylaws”?

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Glossary of Key Terms

Term / Statute

Definition

Action without meeting

A procedure allowed by ARIZ. REV. STAT. § 10-3821 and the Association’s Bylaws (Section 3.5) where a board of directors may take action if it is evidenced by one or more written consents signed by all directors. The consent has the effect of a meeting vote.

Administrative Law Judge (ALJ)

The official, in this case Thomas Shedden, assigned to adjudicate complaints and ensure compliance with relevant statutes for the Office of Administrative Hearings.

ARIZ. REV. STAT. § 10-3821

The state statute titled “Action without meeting” that permits a board of directors to take action without a meeting if all directors provide written consent, unless the articles of incorporation or bylaws provide otherwise.

ARIZ. REV. STAT. § 33-1803 / § 33-1804

The state’s “Open meetings” law for planned communities. It requires that all meetings of an HOA board be open to all members, who shall be permitted to attend and speak at an appropriate time.

Burden of Proof

The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner (Mr. Burnes) bore the burden of proof.

Clifford (Norm) Burnes

The Petitioner in the case, a member of the Saguaro Crest Homeowners Association.

Petitioner

The party who files a petition or brings an action; in this case, Clifford (Norm) Burnes.

Preponderance of the evidence

The standard of proof in this case, defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed; in this case, Saguaro Crest Homeowners Association, Inc.

Saguaro Crest Homeowners Association, Inc.

The Respondent in the case; a planned community governed by a Board of Directors.

Unanimous Written Consent

The method used by the Respondent’s Board of Directors on May 3, 2020, to take action. It involved each board member signing written consent forms, as permitted by ARIZ. REV. STAT. § 10-3821.

Your HOA Board Can Legally Make Decisions in Secret—Here’s How One Homeowner’s Lawsuit Proved It

1.0 Introduction: The Expectation vs. The Reality

For most homeowners living in a planned community, the principle of transparency is paramount. The common expectation is that all significant decisions made by the Homeowners Association (HOA) board of directors will happen in open meetings. These are forums where members can attend, listen to the deliberations, and, at the appropriate time, make their voices heard before the board takes a formal vote. This commitment to openness is often seen as a cornerstone of fair governance.

But what if a board could make a decision without ever holding a meeting at all? This question was at the heart of a legal dispute in Arizona, where a homeowner named Clifford (Norm) Burnes took his HOA, Saguaro Crest, to court. Mr. Burnes alleged that his board violated the state’s open meeting law when it took action on two separate issues without convening a meeting. The case worked its way through an administrative law court, and the final decision sided with the HOA, establishing a critical legal precedent that boards can, under specific circumstances, bypass open meetings entirely.

2.0 Takeaway 1: Boards Can Legally Act “Without a Meeting”

The central facts of the case were not in dispute. On May 3, 2020, the Saguaro Crest HOA board made two formal decisions concerning a neighboring lot, specifically regarding a construction bond waiver and home placement—issues that Mr. Burnes himself had previously raised. Instead of calling a meeting, the board used a procedure known as “unanimous written consent.” The Board President, Ms. Martinez, drafted two consent forms, personally brought them to the homes of the other board members, and had each director sign them.

This action, while sidestepping an open meeting, was found to be perfectly legal. The board was operating under the authority of a specific Arizona state law, ARIZ. REV. STAT. section 10-3821, titled “Action without meeting.” This statute explicitly allows the board of a non-profit corporation to take action without a meeting, provided the action is taken by all directors and is documented by written consent.

Furthermore, this power was not just granted by state law; it was also written directly into the HOA’s own governing documents. Section 3.5 of the Saguaro Crest HOA’s bylaws, titled “Action Without a Meeting,” explicitly grants its directors “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

3.0 Takeaway 2: A Legal Puzzle—When Two State Laws Seem to Conflict

Mr. Burnes’s case created a compelling legal puzzle by highlighting two state laws that appeared to be in direct opposition. On one side was Arizona’s Planned Community law (ARIZ. REV. STAT. section 33-1804), which strongly mandates open meetings for HOA boards and includes a policy statement that any interpretation of the law should be construed “in favor of open meetings.”

On the other side was the state’s Nonprofit Corporation law (ARIZ. REV. STAT. section 10-3821), which, as noted, expressly permits a board to act without a meeting. Mr. Burnes argued that the open meeting law should take precedence.

The Administrative Law Judge, however, made a crucial distinction. Applying a standard legal principle that courts must try to give effect to both laws if possible, the judge determined the two statutes do not actually conflict. The judge’s reasoning clarifies how both can exist and be applied legally.

In this case, both sections 10-3821 and 33-1804 can be given effect in that Respondent may take action without a meeting as allowed by section 10-3821, but if a meeting is held, Respondent must follow the requirements of section 33-1804.

This interpretation is the core of the decision. The open meeting law, with all its requirements for notice and member participation, only applies if a meeting is held. By using the “action without meeting” statute, the Saguaro Crest board legally sidestepped the requirement to hold a meeting in the first place, thereby rendering the open meeting law inapplicable to their actions on that day.

4.0 Takeaway 3: Legislative Intent Can Be Read in a Law’s Silence

Mr. Burnes also advanced a more sophisticated legal argument: that in any conflict, the specific laws written for HOAs (found in Title 33 of the state code) should overrule the more general laws for non-profit corporations (found in Title 10).

The judge’s response to this provided a fascinating lesson in how courts interpret legislative intent, not just from what a law says, but from what it doesn’t say. The judge noted that the section of law governing general membership meetings does contain a specific clause stating that in the case of an inconsistency, the HOA laws control.

Crucially, the section of law governing board meetings, where the “action without meeting” statute is found, has no such clause. The judge interpreted this difference not as an oversight, but as a deliberate choice by lawmakers. This “silence” in the statute was read as a “legislative intent to allow boards latitude to act by consent.” In other words, if the legislature had intended for the open meeting law to always override the board’s ability to act by written consent, it would have explicitly said so, just as it did for membership meetings.

5.0 Conclusion: Efficiency vs. Transparency

While homeowners understandably value and expect open meetings as a tool for transparency and participation, the law also recognizes the need for boards to operate efficiently. The unanimous written consent procedure provides a legal mechanism for boards to make decisions, particularly on straightforward matters, without the time and expense of convening a formal meeting.

This case is more than a legal curiosity; it’s a practical lesson for every homeowner. The power wielded by the Saguaro Crest board is not unique to Arizona. If you want to understand the true scope of your own board’s authority, take these two steps:

1. Review your HOA’s bylaws. Look for a clause titled “Action Without a Meeting” or similar language that grants the board the right to act via written consent. This is the internal authorization.

2. Check your state’s Nonprofit Corporation Act. Search for a statute similar to Arizona’s § 10-3821. This is the ultimate source of the board’s power, and it likely exists in some form in your state, defining the boundary between efficiency and transparency for your community.

Case Participants

Petitioner Side

  • Clifford (Norm) Burnes (petitioner)
    Appeared on his own behalf at the original hearing

Respondent Side

  • John Crotty (HOA attorney)
    Law Offices of Farley, Choate & Wood
    Attorney for Saguaro Crest Homeowners Association, Inc.
  • Esmerelda Sarina Martinez (board president, witness)
    Saguaro Crest Homeowners Association, Inc.
    Testified as a witness for Respondent
  • Madill (board member)
    Saguaro Crest Homeowners Association, Inc.
    Referred to as Mr. Madill

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    ADRE
    Commissioner during original decision transmittal
  • Louis Dettorre (Commissioner)
    ADRE
    Commissioner during rehearing transmittal
  • Miranda Alvarez (staff)
    Transmittal staff (also noted as Miranda A.)
  • c. serrano (staff)
    Transmittal staff

Other Participants

  • Jamie Argueta (staff)
    Conducted research; position and function apparently not in the record

Charles P Mandela vs. Blue Ridge Estates Homeowners’ Association

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 20F-H2020042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-04-27
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles P Mandela Counsel —
Respondent Blue Ridge Estates Homeowners' Association Counsel Nicholas Nogami, Esq.

Alleged Violations

CC&R Article X; CC&R Section 10.3

Outcome Summary

The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.

Why this result: Petitioner failed to meet the burden of proof to establish a violation of the CC&R's and failed to follow the procedural requirements necessary to appeal a deemed disapproval under CC&R Section 10.3.

Key Issues & Findings

Denial of request for patio shade structure and alleged violation of response timeline

Petitioner challenged the HOA's denial of his application for a patio shade, arguing the denial was improper because the shade would be attached (not a separate structure) and that the HOA missed the 30-day response deadline. The ALJ determined that the HOA's denial based on the 'only one structure other than the residence' rule (since a shed already existed) complied with the non-exhaustive Architectural Committee Standards (Article X, 10.2). Regarding the delayed response, the ALJ noted that Section 10.3 mandated that a late response results in the request being 'deemed disapproved,' and the Petitioner failed to subsequently request the required appeal meeting.

Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Respondent violated Article X of the CC&R’s. The Respondent was declared the prevailing party, and the Petitioner's appeal (rehearing) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(A)
  • CC&R Article X
  • CC&R Section 10.3

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Denial, Rehearing, Burden of Proof, Deemed Disapproved
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020042-REL-RHG Decision – 876009.pdf

Uploaded 2026-01-23T17:31:30 (118.9 KB)

20F-H2020042-REL-RHG Decision – ../20F-H2020042-REL/850032.pdf

Uploaded 2026-01-23T17:31:33 (113.4 KB)

Briefing on Mandela v. Blue Ridge Estates Homeowners’ Association

Executive Summary

This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association (“Blue Ridge”). The core issue was Blue Ridge’s denial of Mr. Mandela’s request to build a patio shade structure.

In the initial hearing on January 13, 2021, Mr. Mandela argued the denial was erroneous because the shade would be attached to his house, not a separate structure, and that similar structures existed in the community. Blue Ridge defended its decision based on Article X of its Covenants, Conditions, and Restrictions (CC&Rs), which limits properties to one structure besides the main residence. The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, finding that Blue Ridge acted within the authority granted by its CC&Rs, as its architectural standards were not exhaustive and it provided a reasonably detailed written reason for the denial.

Following this decision, Mr. Mandela was granted a rehearing, which took place on April 16, 2021. During this second hearing, he introduced a new argument that Blue Ridge had violated Article 10.3 of the CC&Rs by failing to respond to his request within the stipulated 30-day timeframe. However, the ALJ found that the same article specifies that a failure to respond results in the request being “deemed disapproved.” The ALJ concluded that Mr. Mandela had failed to follow the subsequent appeal procedures outlined in the CC&Rs and again failed to meet his burden of proof. Consequently, the appeal was dismissed, and Blue Ridge was declared the prevailing party. Notably, during the rehearing, Mr. Mandela testified that his request for the patio shade had since been approved by the Blue Ridge board.

Initial Hearing and Decision (Case No. 20F-H2020042-REL)

The first evidentiary hearing was held on January 13, 2021, before Administrative Law Judge Adam D. Stone to address Mr. Mandela’s petition alleging Blue Ridge violated its CC&Rs.

The Core Dispute

• Petitioner’s Request: On August 28, 2019, Charles P. Mandela submitted a request to build a “patio shade less than 200 sq. feet,” described as a four-post structure he intended to attach to the east wall of his residence.

• Respondent’s Denial: On October 25, 2019, Blue Ridge denied the request, stating: “Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.”

Arguments Presented

• Petitioner (Charles P. Mandela):

◦ Argued passionately that the denial was erroneous because the patio shade was to be attached to the house, not a separate, stand-alone structure.

◦ Presented photographs of other properties within Blue Ridge Estates that had multiple structures and stand-alone patio shades similar to his proposal.

• Respondent (Blue Ridge Estates HOA):

◦ Contended it properly followed Article X of the CC&Rs in its denial.

◦ At the hearing, Blue Ridge pointed to Article III of the CC&Rs as justification, classifying the proposed shade as an additional structure on the property.

Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, concluding he had not established by a preponderance of the evidence that Blue Ridge violated Article X of the CC&Rs.

• Interpretation of CC&R Section 10.2: The judge found that the architectural standards listed in this section were explicitly not exhaustive. The text states standards “may include, without limitation, provisions regarding” aspects like size, design, and placement. This allowed the architectural committee to deny the request based on the “one additional structure” rule, even if not explicitly listed.

• Compliance with CC&R Section 10.3: This section requires the committee to provide “reasonably detailed written reasons for such disapproval.” The judge found that the denial email of October 25, 2019, fulfilled this requirement. The email did not need to cite a specific CC&R section, only to provide an explanation.

• On Precedent and Fairness: The ALJ acknowledged Mr. Mandela’s evidence of similar structures on other properties. However, the decision noted: “While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.”

• Final Ruling: The petition was denied in a decision dated January 29, 2021.

Rehearing and Final Decision (Case No. 20F-H2020042-REL-RHG)

Mr. Mandela filed for a rehearing on February 5, 2021, on the grounds that the decision was arbitrary, capricious, or not supported by evidence. The Arizona Department of Real Estate Commissioner granted the request, and a new hearing was held on April 16, 2021.

New Testimony and Arguments

• Petitioner (Charles P. Mandela):

◦ Subsequent Approval: Testified that since the January 29, 2021 decision, his request for the patio shade had been approved by the Blue Ridge board.

◦ Procedural Violation: Argued that Blue Ridge violated CC&R Section 10.3 by failing to respond to his August 28, 2019, request within the required 30-day period, as the denial was not issued until October 25, 2019.

◦ History of Denials: Stated he had made several previous requests in 2018 and 2019 that were either denied or ignored.

◦ Discrimination: Claimed he had been discriminated against due to the previous denials.

• Respondent (Blue Ridge Estates HOA):

◦ Interpretation of Section 10.3: Argued that while the section may be “confusingly drafted,” it stipulates that if the committee fails to respond within 30 days, the request is “deemed disapproved.” Therefore, the board acted within its authority.

◦ Failure to Appeal: Contended that Mr. Mandela failed to follow the proper appeal procedure outlined in the CC&Rs, as he never specifically requested a meeting to discuss the denial.

Judge’s Final Findings and Conclusions

The ALJ affirmed the original decision, finding for the Respondent as the prevailing party and dismissing Mr. Mandela’s appeal.

• Scope of Rehearing: The judge determined that the rehearing was limited to the August 28, 2019, request and its subsequent denial, as that was the sole focus of the original petition. Mr. Mandela’s arguments about prior denials were not considered new evidence relevant to the specific violation alleged.

• Interpretation of the 30-Day Rule: The ALJ sided with the HOA’s interpretation of Section 10.3. While acknowledging that Blue Ridge took more than thirty days to issue a written denial, the judge ruled that the CC&R’s provision for a “deemed disapproved” status meant the request was properly denied under the rules.

• Petitioner’s Failure to Follow Procedure: The judge noted that Mr. Mandela admitted he did not formally request a meeting with the Architectural Committee after the denial, which was the required next step in the appeal process under Section 10.3.

• Final Ruling: The final decision, dated April 27, 2021, concluded that Mr. Mandela failed to sustain his burden of proof. The HOA was found to have acted in compliance with the CC&Rs, and the appeal was dismissed. This order was declared binding on the parties.

Timeline of Key Events

August 28, 2019

Charles Mandela submits his request to build a patio shade.

October 25, 2019

Blue Ridge HOA denies the request via email, citing the one-additional-structure limit.

January 13, 2020

Mandela files a petition with the Arizona Department of Real Estate.

January 13, 2021

The first evidentiary hearing is held before the Office of Administrative Hearings.

January 29, 2021

The Administrative Law Judge (ALJ) issues a decision denying Mandela’s petition.

February 5, 2021

Mandela files a request for a rehearing.

March 15, 2021

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

April 16, 2021

The rehearing is conducted.

April 27, 2021

The ALJ issues a final decision, finding for the HOA and dismissing Mandela’s appeal.

Central CC&R Provision: Article X, Section 10.3

The most heavily debated provision was Section 10.3 of the Blue Ridge Estates CC&Rs, which outlines the procedure for architectural requests. Its language was central to the outcome of the rehearing.

Key text from Section 10.3:

“The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction… In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved and the Owner can then request a meeting with the Architectural Committee to discuss the reasons for such disapproval…”

This clause was interpreted by the ALJ to mean that the HOA’s failure to provide a written response within 30 days automatically constituted a denial, shifting the burden to the homeowner to request a follow-up meeting, a step Mr. Mandela did not take.

Study Guide: Mandela v. Blue Ridge Estates Homeowners’ Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association, as detailed in the Administrative Law Judge Decisions from January 29, 2021, and April 27, 2021. The case centers on the denial of an architectural request and the interpretation of the association’s governing documents (CC&Rs).

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Quiz: Key Facts and Arguments

Answer the following questions in 2-3 sentences each, based on the provided legal decisions.

1. Who were the primary parties in this case, and what were their roles?

2. What specific structure did Charles P. Mandela request approval to build on August 28, 2019?

3. What was the initial reason given by the Blue Ridge Estates HOA for denying Mr. Mandela’s request on October 25, 2019?

4. What was Mr. Mandela’s central argument during the first hearing on January 13, 2021?

5. According to the decision from the first hearing, why did the Administrative Law Judge rule that the HOA’s denial was in compliance with Section 10.2 of the CC&Rs?

6. On what grounds did Mr. Mandela file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 5, 2021?

7. During the rehearing, what new argument did Mr. Mandela raise concerning the timeline of the HOA’s denial of his August 28, 2019 request?

8. How did the HOA’s legal counsel counter Mr. Mandela’s argument regarding the 30-day response time outlined in Section 10.3?

9. What procedural step, outlined in Section 10.3, did Mr. Mandela admit he failed to take after his request was deemed denied?

10. What was the final outcome of the rehearing on April 16, 2021, and what was the judge’s conclusion regarding the HOA’s actions?

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Answer Key

1. The primary parties were Petitioner Charles P. Mandela, a homeowner, and Respondent Blue Ridge Estates Homeowners’ Association of Coconino County. Mr. Mandela filed the petition against the HOA after it denied his request to build a patio shade.

2. On August 28, 2019, Mr. Mandela requested approval to build a “patio shade less than 200 sq. feet.” The structure was a four-post shade that he intended to attach to the east side wall of his residence.

3. The HOA denied the request based on Architectural Committee Standards Article X. The denial stated that only one structure other than the residence may be placed on the property, and Mr. Mandela already had a residence and a shed.

4. Mr. Mandela’s central argument was that the denial was erroneous because the patio shade was not a separate stand-alone structure. He planned to attach it to his house, and he presented photographs of other properties with similar structures.

5. The judge ruled the denial complied with Section 10.2 because the list of standards the Architectural Committee could enforce was “not an exhaustive one.” This meant the committee could properly deny the request based on the one-structure limit, even if it wasn’t explicitly enumerated.

6. Mr. Mandela requested a rehearing on the grounds that the findings of fact were arbitrary, capricious, or an abuse of discretion. He also claimed the decision was not supported by the evidence or was contrary to law.

7. During the rehearing, Mr. Mandela argued that the Board violated Section 10.3 of the CC&Rs. He contended that since he made his request on August 28, 2019, and the Board did not respond until October 25, 2019, it had failed to provide a written response within the required 30-day period.

8. The HOA’s counsel argued that while Section 10.3 may be “confusingly drafted,” it specifies that if the committee fails to approve or disapprove within the 30-day period, the request is “deemed disapproved.” Therefore, the Board was within its authority.

9. Mr. Mandela admitted that he did not formally request a meeting with the Architectural Committee to discuss the reasons for the disapproval. This is the procedural step required by Section 10.3 after a request is deemed denied.

10. The final outcome was that the petition was dismissed, and the Respondent (HOA) was declared the prevailing party. The judge concluded that the HOA had not violated the CC&Rs and had acted in compliance with its governing documents.

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Essay Questions for Further Study

The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each, citing specific details from the legal decisions.

1. Analyze the interpretation of CC&R Section 10.3, specifically the “deemed disapproved” clause. Discuss how this clause functioned as a key legal defense for the HOA and ultimately shaped the outcome of the rehearing.

2. The legal standard in this case was “a preponderance of the evidence.” Define this standard as described in the legal text and evaluate the evidence Mr. Mandela presented in both hearings. Why did the Administrative Law Judge conclude that Mr. Mandela failed to meet his burden of proof?

3. Compare and contrast the arguments presented by the Petitioner and Respondent in the initial hearing (January 13, 2021) versus the rehearing (April 16, 2021). How did the focus of the legal arguments shift between the two proceedings?

4. Examine the authority and jurisdiction of the Architectural Committee as outlined in CC&R Section 10.2. Discuss the significance of the phrase “Such standards and procedures may include, without limitation, provisions regarding…” in the judge’s initial decision.

5. Trace the procedural history of this case, from Mr. Mandela’s initial request in August 2019 to the final order in April 2021. Identify at least four key procedural milestones and explain their significance to the case’s progression and ultimate resolution.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Adam D. Stone, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions concerning disputes regulated by state agencies.

Architectural Committee

A body within the Blue Ridge Estates HOA established by Article X of the CC&Rs, with jurisdiction over all original construction and any modifications, additions, or alterations to the exterior of homes or properties.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations and the associations themselves in Arizona.

Burden of Proof

The obligation of a party in a legal proceeding to produce evidence that proves the facts it claims are true. In this case, the Petitioner (Mr. Mandela) bore the burden of proof.

An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community like Blue Ridge Estates. This case centered on the interpretation of Article X of the Blue Ridge CC&Rs.

Homeowners’ Association (HOA)

The governing organization for a planned community. In this case, the Respondent was the Blue Ridge Estates Homeowners Association of Coconino County.

Motion to Dismiss

A formal request filed by a party asking for a lawsuit or petition to be dismissed. The Blue Ridge HOA filed a Motion to Dismiss, which was denied on October 7, 2020, allowing the case to proceed.

Office of Administrative Hearings

An independent state agency in Arizona where petitions related to disputes with HOAs are sent for an evidentiary hearing before an Administrative Law Judge.

Petitioner

The party who files a petition initiating a legal action. In this case, Charles P. Mandela was the Petitioner.

Preponderance of the Evidence

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

Rehearing

A second hearing granted to review a legal decision. Mr. Mandela was granted a rehearing after the initial decision, based on his claim that the findings were arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowners’ Association was the Respondent.

Tribunal

A term used in the documents to refer to the judicial body hearing the case, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.

He Fought the HOA Over a Patio and Lost. Here Are 5 Shocking Lessons Every Homeowner Needs to Learn.

Introduction: The Perils of a Simple Home Improvement Project

For any homeowner, the excitement of a new project—a deck, a fence, or a simple patio shade—can quickly turn to frustration when it collides with the dense rulebook of a Homeowners’ Association (HOA). What seems like a straightforward improvement can become a complex battle of bylaws and procedures.

This was the reality for Charles P. Mandela, a homeowner in the Blue Ridge Estates community. His plan to build a simple patio shade was denied by his HOA, sparking a legal challenge that went before an Administrative Law Judge. While Mr. Mandela ultimately lost his case on its legal merits, the details of his fight offer a masterclass in the surprising and often counter-intuitive world of HOA governance. This article distills the most shocking lessons from his case, providing critical insights for any homeowner living under an HOA.

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1. The “Deemed Disapproved” Clause: How an HOA’s Silence Becomes a Legal “No”

Mr. Mandela submitted his request to build a patio shade on August 28, 2019. He argued that the HOA, Blue Ridge Estates, violated its own rules, which required a response within 30 days. The HOA didn’t send its formal denial until October 25, 2019, well past the deadline. On the surface, it seemed like a clear procedural violation by the HOA.

However, a bizarre and “unartfully drafted” clause hidden in the HOA’s governing documents (CC&Rs) turned this logic on its head. The rule stated:

In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved…

Contrary to common sense, the rule meant that the HOA’s failure to respond on time resulted in an automatic denial, not a pending approval. The Administrative Law Judge was bound by this text, concluding that because the 30-day period had passed without a formal approval, the request was “properly deemed denied.”

2. The “My Neighbor Has One” Argument Is Weaker Than You Think

To support his case, Mr. Mandela presented photographs showing that “similar shades exist on other properties with additional structures.” He argued that the HOA was engaging in selective enforcement by denying his project while having approved others like it. This is one of the most frequent arguments homeowners make when they feel singled out by their HOA board.

The judge’s conclusion was a stunning reality check. The legal decision stated:

While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.

The legal reasoning here is crucial for homeowners to understand. Architectural committees are not static; members change, and so can their interpretation of aesthetic standards. Each application is legally considered a distinct request, evaluated under the rules in place at that moment. A previous committee’s approval—which may have even been a mistake or a variance granted under different circumstances—does not create a binding legal precedent that forces the current committee to repeat it.

3. Procedure is Everything: A Missed Step Can Cost You the Case

The HOA’s rules contained a specific process for appealing a denial. After a project is “deemed disapproved” because the 30-day clock ran out, the homeowner must then formally request a meeting with the committee to discuss the denial.

The judge found that Mr. Mandela had failed to take this critical next step. This procedural misstep, however small it might seem, became a key factor in the case against him. The decision hinged on this procedural failure, stating:

Further, Petitioner admitted that in his several email responses that he did not formally request a meeting with the Architectural Committee, thus he failed to follow the procedures in Section 10.3.

This highlights a crucial lesson: meticulously follow every single procedural step outlined in your HOA’s documents. Failure to do so, such as not using the correct language to request a meeting, can be used to dismiss your claim, regardless of its other merits.

4. “Unartfully Drafted” Rules Can Still Be Legally Binding

Even the Administrative Law Judge acknowledged the poor quality of the HOA’s rulebook. In the decision, the judge offered a candid assessment of the rule regarding the 30-day response time, stating, “Admittedly this section is unartfully drafted…”

Despite this observation, the rule was enforced exactly as written. The judge was bound by the text, however confusing, and concluded that “from the evidence presented, the request was properly deemed denied.”

This is perhaps the most sobering lesson. Homeowners often assume that a rule that is confusing or seems illogical won’t hold up under scrutiny. This case proves that the literal text of the governing documents possesses immense power. What a rule literally says is far more important than what one might assume it should mean.

5. The Final Twist: He Lost the Case But Got His Patio Anyway

After the initial decision was made against him, Mr. Mandela requested a rehearing. During this second hearing, a surprising fact emerged. Mr. Mandela testified that “since the decision on January 29, 2021, his request for the patio shade had been approved by the Board.”

This outcome highlights a crucial dynamic: while Mr. Mandela lost the legal argument based on procedural history, his persistent engagement in the process—including filing a formal appeal—likely created enough administrative and community pressure to compel the Board to find a practical, non-legal solution. It’s a powerful reminder that a legal loss on a technicality does not always foreclose a real-world victory.

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Conclusion: Do You Really Know Your HOA’s Rules?

The case of Charles Mandela serves as a powerful cautionary tale. It reveals that HOA disputes are rarely won on appeals to fairness or common sense. Instead, they are won or lost in the fine print of the governing documents—documents that can contain counter-intuitive clauses, procedural traps, and “unartfully drafted” rules that are nonetheless legally binding.

A homeowner’s best defense is not passion or conviction, but a deep and thorough understanding of the specific rules and procedures they agreed to live by. This case forces every homeowner to ask: Are you prepared to navigate the literal text of your community’s rules, where silence can mean “no” and a neighbor’s precedent is no precedent at all?

Case Participants

Petitioner Side

  • Charles P Mandela (petitioner)

Respondent Side

  • Nicholas Nogami (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Marc Archer v. PMPE Community Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

The Administrative Law Judge issued an Order Vacating Hearing after the Petitioner voluntarily withdrew his request for rehearing.

Key Issues & Findings

Request for Rehearing Withdrawal

Petitioner requested a rehearing based on actions taken by the Respondent after the initial decision. When informed that a rehearing could only address matters occurring prior to the initial petition filing, Petitioner chose to withdraw the request for rehearing and stated intent to file a new petition challenging Respondent’s denial of his submission to build an addition to his house.

Orders: The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020063-REL Decision – 864308.pdf

Uploaded 2026-04-24T11:28:03 (52.9 KB)

20F-H2020063-REL Decision – 864361.pdf

Uploaded 2026-04-24T11:28:15 (8.2 KB)

20F-H2020063-REL Decision – 840677.pdf

Uploaded 2026-04-24T11:28:22 (125.3 KB)

Administrative Hearing Briefing: Archer v. PMPE Community Association, Inc.

Executive Summary

This briefing document outlines the key details and resolution of case number 20F-H2020063-REL-RHG, involving Petitioner Marc Archer and Respondent PMPE Community Association, Inc. On March 16, 2021, Administrative Law Judge Tammy L. Eigenheer issued an order vacating a scheduled rehearing. The core issue was procedural: the Petitioner’s request for rehearing was based on actions the Respondent took after the initial hearing’s decision, which falls outside the permissible scope of a rehearing. Upon being informed of this limitation, the Petitioner withdrew his request. He indicated his intent to file a new, separate petition to address the Respondent’s denial of his submission to build a house addition. The judge’s order is binding, with any appeal required to be filed in superior court within 35 days.

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Case Overview

I. Case Identification

Detail

Information

Case Name

Marc Archer, Petitioner, vs PMPE Community Association, Inc., Respondent

Case Number

20F-H2020063-REL-RHG

Adjudicating Body

Office of Administrative Hearings (Arizona)

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Date of Order

March 16, 2021

II. Parties Involved

Name & Affiliation

Contact Information

Petitioner

Marc D. Archer

[email protected]

Respondent

PMPE Community Association, Inc.

Not provided

Respondent’s Counsel

Nicholas Nogami, Esq., Carpenter Hazlewood Delgado & Bolen, LLP

[email protected]
[email protected]

Analysis of Proceedings

A. Basis for the Rehearing and Procedural Issue

The scheduled hearing was a rehearing requested by the Petitioner, Marc Archer. The basis for his request centered on events that transpired after the conclusion of the initial hearing.

• Petitioner’s Grounds for Rehearing: The request was explicitly based on “actions taken by Respondent after the decision in the initial hearing had been issued.”

• Jurisdictional Limitation: The Petitioner was informed at the hearing that the scope of a rehearing is limited to matters that occurred before the original petition was filed. The document states: “When Petitioner was informed that the only issues that could be addressed in a rehearing on his petition were those matters that occurred prior to his petition being filed…”

• Subject of New Dispute: The specific post-decision action Archer sought to challenge was the “Respondent’s denial of his submission to build an addition to his house.”

B. Resolution and Outcome

Faced with the procedural limitations of a rehearing, the Petitioner altered his legal strategy, leading to the cancellation of the proceeding.

• Withdrawal of Request: The Petitioner “concluded that he wished to withdraw his request for a rehearing at that time.”

• Stated Intention: Archer “indicated that he would file a new petition to challenge Respondent’s denial of his submission to build an addition to his house.”

• Final Order: The judge issued a formal order vacating the hearing.

Legal Standing and Appeal Process

The order issued on March 16, 2021, carries legal weight and outlines specific requirements for any subsequent appeal.

• Binding Nature of the Order: The order is binding on the parties involved, as stipulated by Arizona Revised Statutes (A.R.S.) § 32-2199.02(B).

• Appeal Requirements: A party wishing to appeal the order must seek judicial review.

◦ Venue: The appeal must be filed with the superior court.

◦ Deadline: The filing must occur within thirty-five (35) days from the date the order was served upon the parties.

• Governing Statutes: The appeal process is prescribed by the following state statutes:

◦ A.R.S. § 41-1092.08(H)

◦ A.R.S. § 12-904(A)

◦ Title 12, Chapter 7, Article 6 of the Arizona Revised Statutes

Document Distribution

Copies of the “Order Vacating Hearing” were officially distributed via mail, email, or fax on March 16, 2021, to the following parties:

• Arizona Department of Real Estate:

◦ Judy Lowe, Commissioner

◦ Additional recipients at the department ([email protected], [email protected], [email protected], [email protected], [email protected], [email protected])

• Petitioner:

◦ Marc D. Archer

• Respondent’s Counsel:

◦ Nicholas Nogami, Esq. (Carpenter Hazlewood Delgado & Bolen, LLP)

Study Guide: Case No. 20F-H2020063-REL-RHG

Short-Answer Quiz

Answer the following questions in two to three sentences each, based on the provided legal document.

1. Identify the primary parties involved in case No. 20F-H2020063-REL-RHG and state their respective roles.

2. What was the specific legal action taken by the Office of Administrative Hearings on March 16, 2021, and who was the presiding judge?

3. What was the original reason Marc Archer requested a rehearing?

4. Why was the Petitioner informed that his reason for a rehearing was invalid for the current proceedings?

5. What was the Petitioner’s final decision regarding his request for a rehearing, and what was the outcome for the scheduled hearing?

6. What future action did Marc Archer state he intended to take after withdrawing his request?

7. According to the document’s notice, what is the legal standing of the “Order Vacating Hearing” on the parties involved?

8. Describe the process and timeline an involved party must follow to appeal this order.

9. Who legally represented the Respondent, PMPE Community Association, Inc., in this matter?

10. To what primary state agency and specific official was a copy of this order distributed?

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Answer Key

1. The primary parties were Marc Archer, who served as the Petitioner, and the PMPE Community Association, Inc., which was the Respondent. The Petitioner is the party who filed the petition, and the Respondent is the party against whom the petition was filed.

2. On March 16, 2021, an “Order Vacating Hearing” was issued, removing the matter from the calendar of the Office of Administrative Hearings. The presiding judge who signed the order was Administrative Law Judge Tammy L. Eigenheer.

3. Marc Archer’s basis for requesting a rehearing was to address actions that the Respondent, PMPE Community Association, Inc., had taken after the decision in the initial hearing had already been issued.

4. The Petitioner was informed that his basis was invalid because a rehearing can only address matters that occurred prior to the filing of his original petition. The new actions he wished to contest would require a new, separate petition.

5. After being informed about the limitations of a rehearing, the Petitioner concluded that he wished to withdraw his request. As a result, the judge ordered that the hearing be vacated from the Office of Administrative Hearings’ calendar.

6. After withdrawing his request, Marc Archer indicated that he would file a new petition. This new petition would specifically challenge the Respondent’s denial of his submission to build an addition to his house.

7. The order is legally binding on the parties, as stated in the notice section referencing Arizona Revised Statute (A.R.S.) § 32-2199.02(B). This means both the Petitioner and the Respondent must legally comply with the order.

8. To appeal the order, a party must seek judicial review in the superior court. This appeal must be filed within thirty-five days from the date the order was served upon the parties, as prescribed by A.R.S. § 41-1092.08(H), title 12, chapter 7, article 6, and A.R.S. § 12-904(A).

9. The Respondent was represented by Nicholas Nogami, Esq. of the law firm Carpenter Hazlewood Delgado & Bolen, LLP.

10. A copy of the order was mailed or e-mailed to Judy Lowe, the Commissioner of the Arizona Department of Real Estate. Copies were also sent to several other email addresses associated with that department.

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Essay Questions

Develop a detailed essay answer for each of the following prompts, using only information found within the source document to support your analysis.

1. Analyze the procedural error made by the Petitioner that led to the hearing being vacated. Explain the critical distinction between the scope of a “rehearing” and a “new petition” as implied by the events in the order.

2. Based on the provided document, reconstruct the timeline of events. Begin with the implied initial hearing, describe the basis for the requested rehearing, detail the procedural clarification provided to the Petitioner, and outline the subsequent actions taken by both the Petitioner and the Administrative Law Judge.

3. Discuss the legal framework governing appeals for this type of administrative order. Cite the specific Arizona Revised Statutes (A.R.S.) mentioned in the document and explain the jurisdiction, requirements, and timeline for seeking judicial review.

4. Evaluate the communication process documented in the order. Identify all named recipients of the order, their titles or affiliations, and hypothesize why each party or entity would need to be formally notified of this decision.

5. Examine the role and authority of the Administrative Law Judge and the Office of Administrative Hearings in this specific dispute. How does the order demonstrate the limits of their jurisdiction and the procedural rules they enforce?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and has the authority to issue legally binding orders.

Appeal

The process by which a party requests that a higher court (in this case, the superior court) review the decision of a lower body (the Office of Administrative Hearings).

A.R.S. (Arizona Revised Statutes)

The collection of laws enacted by the Arizona state legislature. The document references A.R.S. § 32-2199.02(B), § 41-1092.08(H), and § 12-904(A) to establish the legal basis for the order’s finality and the appeal process.

Judicial Review

A type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, such as the Office of Administrative Hearings.

Office of Administrative Hearings (OAH)

A state agency that conducts hearings for other state agencies, providing a neutral forum for disputes. In this case, it presided over the matter between Marc Archer and the PMPE Community Association, Inc.

Order Vacating Hearing

A formal directive from a judge that cancels a previously scheduled hearing and removes it from the court’s or agency’s calendar.

Petition

A formal written request submitted to a court or administrative body, initiating a legal case or making a specific application.

Petitioner

The party who files a petition with a court or administrative body. In this case, Marc Archer.

Rehearing

A second hearing of a case to consider issues that were part of the original petition. As clarified in the order, it cannot be used to address new matters that arose after the initial decision.

Respondent

The party against whom a petition is filed and who is required to respond to it. In this case, PMPE Community Association, Inc.

Superior Court

A state-level trial court of general jurisdiction. The document specifies that any appeal of the administrative order must be filed with the superior court.

Select all sources
864308.pdf
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20F-H2020063-REL

2 sources

The provided sources are two copies of an Order Vacating Hearing issued by the Office of Administrative Hearings in the matter of Marc Archer vs PMPE Community Association, Inc. The order, signed by Administrative Law Judge Tammy L. Eigenheer on March 16, 2021, indicates that Petitioner Marc Archer requested a rehearing based on actions taken by the Respondent after the initial decision was issued. Because the rehearing was limited to matters that occurred before the original petition was filed, Mr. Archer chose to withdraw his request for a rehearing and announced his intention to file a new petition to challenge the community association’s denial of his proposal to build a house addition. Consequently, the hearing was vacated from the administrative calendar, and the order includes a notice regarding the process for judicial review if a party wished to appeal.

2 sources

Why did Marc Archer withdraw his request for a rehearing on case 20F-H2020063-REL?
What were the specific procedural limitations governing the scope of the administrative rehearing?
How does this order relate to the Petitioner’s future challenge regarding his house addition?

Audio Overview

Video Overview

Video Overview

Mind Map Mind Map

Reports Reports

Flashcards

Flashcards

Quiz

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Case Participants

Petitioner Side

  • Marc Archer (petitioner)
    Appeared on his own behalf; Homeowner and member of PMPE

Respondent Side

  • Nicholas Nogami (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen
    Represented Respondent PMPE Community Association, Inc.
  • Keith Kauffman (board member)
    PMPE Community Association, Inc.
    President, Treasurer, and AC member; testified at hearing

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Presided over the main hearing and issued the order vacating rehearing
  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Ruled in a prior related evidentiary hearing
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Addressee for transmission of orders
  • DGardner (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of order via email
  • f. del sol (Staff)
    Signed transmittal of ALJ decision
  • c. serrano (Staff)
    Signed transmittal of Order Vacating Hearing
  • LDettorre (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of order via email
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of order via email
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of order via email
  • ncano (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of order via email

Other Participants

  • Carlotta L Turman (unknown)
    Carpenter, Hazelwood, Delgado & Bolen
    Listed in transmission details associated with PMPE counsel

Nancy L Babington v. Park Scottsdale II Townhouse Corporation

Posted on by

Case Summary

Case ID 20F-H2020064-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-24
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $2,500.00

Parties & Counsel

Petitioner Nancy L. Babington Counsel —
Respondent Park Scottsdale II Townhouse Corporation Counsel Mark K. Sahl and Scott B. Carpenter

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.

Key Issues & Findings

Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.

Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.

Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $2,500.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

20F-H2020064-REL Decision – 866802.pdf

Uploaded 2026-04-24T11:28:35 (123.5 KB)

20F-H2020064-REL Decision – 823263.pdf

Uploaded 2026-04-24T11:28:38 (108.6 KB)

Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation

Executive Summary

This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.

The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.

The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.

As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.

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1. Case Overview

• Case Number: 20F-H2020064-REL

• Petitioner: Nancy L. Babington

• Respondent: Park Scottsdale II Townhouse Corporation

• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.

• Hearings Conducted:

◦ Initial Hearing: August 28, 2020

◦ Rehearing: March 4, 2021

• Presiding Administrative Law Judge: Tammy L. Eigenheer

2. Chronology of the Dispute

The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.

• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.

• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.

• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:

• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.

• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:

1. All bank statements with copies of cancelled checks since Sept 1, 2019.

2. Any and all financial statements since Sept 1, 2019.

3. Any and all 1099s issued for 2019.

4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).

5. Any and all contracts signed in 2020.

6. Any and all outstanding invoices with a due date over 45 days.

7. Any documentation regarding the legality of the $204.75 maintenance fee.

8. Any proof of Stephen Silberschlag’s liability insurance.

9. Any landscaping plans.

• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.

• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.

• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.

3. The Initial Hearing and Decision (August – September 2020)

The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.

• The Respondent argued that it was unable to provide documents that were not in its possession.

• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.

• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.

• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.

• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.

• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.

4. The Rehearing and Reversal (March 2021)

Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.

• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.

• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.

• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.

The rehearing revealed crucial details about the location and accessibility of the requested records.

Record Type

Petitioner’s Evidence

Respondent’s Testimony/Explanation

Bank Statements

The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.

Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.

Contracts

Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.

Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.

1099 Forms

Petitioner noted a document indicating four vendors were eligible for 1099s.

Ms. Shanley denied that any 1099s had been issued.

• The documents were not in the “immediate possession” of the local Associa office.

• The matter was now moot because the Petitioner had received all requested documents.

• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.

• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.

• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.

• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”

5. Final Order and Penalties

The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.

IT IS ORDERED that:

1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.

2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.

Study Guide: Babington v. Park Scottsdale II Townhouse Corporation

This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.

Short-Answer Quiz

Answer each question in 2-3 sentences based on the information provided in the case documents.

1. Who were the primary parties in this case, and what was the Petitioner’s central allegation?

2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?

3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?

4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?

5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?

6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?

7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?

8. What was the final outcome of the rehearing, and how did it contradict the initial decision?

9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?

10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?

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Answer Key

1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.

2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.

3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.

4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.

5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.

6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.

7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.

8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).

9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.

10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.

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Essay Questions

The following questions are designed for analytical and in-depth responses. Answers are not provided.

1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?

2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.

3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?

4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.

5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.

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Glossary of Key Terms

Term / Entity

Definition

A.R.S. § 32-2199 et seq.

The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.

A.R.S. § 33-1258

The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.

Administrative Law Judge (ALJ)

The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.

Associa Arizona

The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.

Civil Penalty

A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.

Community Management & Consulting, LLC (CMC)

The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.

Department of Real Estate (Department)

The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.

A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.

Newly Discovered Material Evidence

The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.

Petitioner

The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.

Preponderance of the Evidence

The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”

Rehearing

A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.

Respondent

The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.

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20F-H2020064-REL-RHG

2 sources

These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.

2 sources

How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?

Based on 2 sources

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Nancy L. Babington (petitioner)

Respondent Side

  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at initial hearing
  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at rehearing
  • Scott B. Carpenter (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at rehearing
  • Debbie Schumacher (board member)
    Park Scottsdale II Townhouse Corporation
  • Marty Shuford (board member)
    Park Scottsdale II Townhouse Corporation
  • Joseph Silberschlag (board member)
    Park Scottsdale II Townhouse Corporation
    Secretary; testified
  • Angelina Rajenovich (board member)
    Park Scottsdale II Townhouse Corporation
  • Dermot Brown (board member)
    Park Scottsdale II Townhouse Corporation
  • Lori Nusbaum (board member)
    Park Scottsdale II Townhouse Corporation
  • Linda Parker (HOA staff)
    Associa Arizona
    Director of Client Services for property manager
  • Evelyn Shanley (HOA staff)
    Associa Arizona
    Community Director for property manager; testified at rehearing
  • Laura Smith (HOA staff)
    Associa Arizona

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • ncano (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (staff)
    Signed order transmission

Other Participants

  • Stephen Silberschlag (unknown)
    Subject of Petitioner's record request

Debra K Morin v. Solera Chandler Homeowners’ Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2020051-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-01-08
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debra K. Morin Counsel —
Respondent Solera Chandler Homeowners' Association, Inc. Counsel Lydia A. Perce Linsmeier, Esq.

Alleged Violations

CC&R Article 7, Section 7.1

Outcome Summary

The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.

Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.

Key Issues & Findings

Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times

Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.

Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. 33-1801 et seq.
  • 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
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:

  • A.R.S. 33-1801 et seq.
  • 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
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Video Overview

Audio Overview

Decision Documents

20F-H2020051-REL Decision – 816310.pdf

Uploaded 2026-04-24T11:26:18 (199.6 KB)

20F-H2020051-REL Decision – 847175.pdf

Uploaded 2026-04-24T11:26:21 (246.5 KB)

Briefing Document: Morin v. Solera Chandler Homeowners’ Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.

Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.

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I. Case Background and Procedural History

The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).

A. Initial Petition

On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).

• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.

• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.

B. Procedural Developments

• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.

• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.

• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.

• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.

• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.

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II. Core Arguments of the Parties

The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.

A. Petitioner’s Position (Debra K. Morin)

Ms. Morin’s case was built on the principle of equal application of maintenance standards.

• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).

• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.

• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:

◦ Uncontrolled weeds in granite rock locations

◦ Poor exterior condition of the Community Center

◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing

◦ Water pooling and intrusion issues

◦ Exposed landscaping lights and irrigation lines

◦ Unremoved tree stumps

B. Respondent’s Position (Solera HOA)

Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.

• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.

• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”

• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.

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III. Analysis and Key Findings of the Administrative Law Judge

The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.

A. The “Sole Judge” Clause and Board Authority

The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.

• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.

• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”

• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.

B. Rejection of the “Equal Standard” Argument

The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.

• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”

• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.

C. Evaluation of Evidence and Burden of Proof

• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”

• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”

• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.

D. Jurisdictional Limitations

The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.

• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”

• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.

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IV. Final Order and Conclusion

Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.

• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.

• Order:

◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.

◦ The order was issued on January 8, 2021.

◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.

Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.

This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.

Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.

1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?

2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?

3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?

4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?

5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?

6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?

7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?

8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?

9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?

10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?

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Answer Key

1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.

2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.

3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.

4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.

5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.

6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.

7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.

8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.

9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.

10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.

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Suggested Essay Questions

The following questions are designed to encourage deeper analysis of the case. No answers are provided.

1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.

2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.

3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?

4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.

5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.

Areas of Association Responsibility (AREAS)

The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.

Articles of Incorporation

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.

By-Laws

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.

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

A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.

Maintenance Standard

Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”

Motion to Dismiss

A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.

Petitioner

The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.

Preponderance of the Evidence

The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Premier Management Company (Premier)

The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.

Project Documents

Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.

Respondent

The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.

R&Rs (Rules and Regulations)

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.

Tribunal

A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.

🧑‍⚖️

20F-H2020051-REL-RHG

1 source

This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.

Case Participants

Petitioner Side

  • Debra K. Morin (petitioner)
    Represented herself

Respondent Side

  • Lydia A. Perce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Solera Chandler Homeowners' Association
  • Denise Frazier (general manager/witness)
    Premier Management Company / Solera Chandler Homeowners' Association
    Solera's onsite general manager who testified

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for both original and rehearing decisions
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner of the Arizona Department of Real Estate
  • Felicia Del Sol (administrative)
    Transmitted the original August 19, 2020 Decision

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

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Case Summary

Case ID 20F-H2020059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-12
Administrative Law Judge Sondra J. Vanella
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Nicole Payne

Alleged Violations

CC&Rs § 5.1; A.R.S. § 10-3842

Outcome Summary

The Petition was dismissed after rehearing because Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs. The ALJ found that Petitioner continually refused Respondent access to his locked back yard for landscaping maintenance, and the CC&Rs requiring landscaping do not mandate pool maintenance.

Why this result: Petitioner failed to establish a violation due to refusal of access to the back yard and misinterpretation of CC&R obligations regarding pool maintenance.

Key Issues & Findings

Failure to maintain landscaping and acting in bad faith

Petitioner alleged Respondent HOA violated CC&Rs by failing to maintain landscaping in 2020 and acting in bad faith, asserting that pool/hardscape maintenance was included in landscaping duties, and requesting the maximum fine. Respondent countered that they consistently maintained the front yard but were denied access to the locked backyard due to Petitioner's pool liability concerns.

Orders: Petitioner's Petition was dismissed/denied as Petitioner failed to establish a violation by a preponderance of the evidence. However, Respondent was ordered, going forward, to communicate the days and times they will be performing back yard landscaping so Petitioner can provide access.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs § 5.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 10-3842
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-1122(A)(1)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA Duties, Landscaping, Pool Maintenance, CC&Rs, Access Refusal, Rehearing
Additional Citations:

  • CC&Rs § 5.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 10-3842
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-1122(A)(1)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020059-REL Decision – 855028.pdf

Uploaded 2026-05-02T10:34:27 (139.1 KB)

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2026-05-02T10:34:33 (124.1 KB)

20F-H2020059-REL Decision – 855028.pdf

Uploaded 2026-04-24T11:27:32 (139.1 KB)

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2026-04-24T11:27:36 (124.1 KB)

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2026-01-23T17:33:21 (124.1 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The core of the dispute centers on the scope of landscaping maintenance obligations as defined by the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner alleged the HOA failed its duties under CC&Rs § 5.1 by not maintaining his property’s unique landscaping, which he argued included replenishing rock, staining paths, and servicing his swimming pool and associated hardscape. He further claimed the HOA was acting in bad faith and failing to comply with a previous court ruling.

The Respondent countered that it had consistently performed standard landscaping on the Petitioner’s front yard since January 2020. However, it was repeatedly denied access to the backyard, a fact the Petitioner admitted, citing liability concerns due to his pool. The HOA provided evidence of multiple attempts to access the yard and testimony that its maintenance duties are uniform across the community and do not include “concierge” services or pool maintenance.

The Administrative Law Judge ultimately dismissed the petition in both the initial hearing and a subsequent rehearing. The final decision rested on two key points: 1) The Petitioner failed to provide access to the area in question, preventing the HOA from performing its duties. 2) The Petitioner failed to meet the burden of proof that the term “landscaping” under the CC&Rs could be reasonably interpreted to include swimming pool maintenance. This conclusion was strongly supported by the separate licensing classifications for landscaping (R-21) and swimming pool service (R-6) issued by the Arizona Registrar of Contractors, which establishes them as distinct services under state regulation.

Case Overview

Parties and Key Personnel

Name/Entity

Affiliation / Title

Petitioner

Michael J. Stoltenberg

Homeowner, 11777 E. Calle Gaudi, Yuma, AZ

Respondent

Rancho Del Oro Homeowners Association

Homeowners’ Association (HOA)

Respondent Counsel

Nicole Payne, Esq.

Legal Representative

Respondent Witness

Diana Crites

Owner, Crites and Associates (Property Management Co.)

Respondent Witness

Rian Baas

Owner, Mowtown Landscape (HOA Landscaping Contractor)

Presiding Judge

Sondra J. Vanella

Administrative Law Judge

Case Details

Details

Initial Case No.

20F-H2020059-REL

Initial Hearing

August 3, 2020

Initial Decision

August 17, 2020

Rehearing Case No.

20F-H2020059-REL-RHG

Rehearing

February 2, 2021

Rehearing Decision

February 12, 2021

Core Dispute

The central conflict involved the interpretation of the HOA’s maintenance obligations under its governing documents. The Petitioner argued for an expansive definition of “landscaping” that encompassed his entire property exterior, including a swimming pool. The HOA maintained that its duties were limited to standard, uniform landscaping services and that pool maintenance was explicitly excluded. The dispute was compounded by the Petitioner’s refusal to grant the HOA’s landscaper access to his backyard.

Petitioner’s Allegations and Arguments

Mr. Stoltenberg’s petition, filed on or about April 21, 2020, and subsequent arguments in two hearings, were based on the following claims:

• Violation of CC&Rs: The HOA violated § 5.1 of its CC&Rs by failing “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.”

• Broad Interpretation of “Landscaping”: As the CC&Rs do not define “landscaping,” the Petitioner contended it should include all types of features outside of structures. His specific demands included:

◦ Maintenance of unique xeriscape with geometric patterns.

◦ Replenishment of thin or worn-out rock ground cover.

◦ Staining of walking paths.

◦ Full maintenance of his “water feature,” identified as a swimming pool. This included the pump, filter, chemicals, patio, and all related hardscape.

• Refusal to Grant Access: The Petitioner acknowledged that the gate to his backyard was “always locked.” He stated this was for liability reasons due to the pool and refused access to the HOA’s landscapers. At the rehearing, he argued the HOA failed to communicate its schedule to allow him to provide temporary access.

• Budgetary Failure: He asserted that the HOA did not properly budget for the costs associated with maintaining his unique landscaping.

• Grounds for Rehearing: After the initial denial, the Petitioner requested a rehearing on multiple grounds, including irregularity in proceedings, errors in evidence admission, and claims of “Americans with Disabilities Act (ADA) issues” related to hearing loss.

Respondent’s Position and Evidence

The Rancho Del Oro HOA presented a defense centered on its consistent attempts to fulfill its obligations and the Petitioner’s own actions preventing them from doing so.

• Consistent Front Yard Maintenance: Both the HOA property manager and its landscaping contractor testified that the Petitioner’s front yard had been continuously maintained since landscaping services began in January 2020.

• Denial of Backyard Access: The HOA’s primary defense was that it was physically prevented from servicing the backyard. Evidence presented to support this included:

◦ Testimony from Rian Baas (Mowtown Landscape): His crews were at the property weekly. Between January and March 2020, he or his crew knocked and left notes or business cards four to five times with no response.

◦ Witness Testimony: In March 2020, a woman at the residence (presumably the Petitioner’s wife) explicitly instructed a landscaper that “she does not want anyone in the back yard because she had a pool and that is the reason for the lock on gate.”

◦ Documentary Evidence: A text message dated March 24, 2020, from Mr. Baas to property manager Diana Crites memorialized this interaction. A photograph of the locked gate was also submitted.

• Scope of Services: Ms. Crites testified that HOA landscape services are uniform throughout the community and include front yard maintenance, mowing and blowing in backyards (if access is granted), and sprinkler system upkeep. They do not provide “concierge” services such as maintaining potted plants, driveways, or pools (except for the community pool, which is serviced by a separate contractor).

• Access as a Prerequisite: Ms. Crites explained that backyard maintenance is contingent on homeowners leaving their gates unlocked, and some owners choose not to grant access due to pets or other reasons.

Judicial Findings and Rulings

Initial Decision (August 17, 2020)

The Administrative Law Judge denied the Petitioner’s initial petition based on a clear set of facts.

• Findings of Fact: The judge found the evidence presented by the Respondent to be credible. The Petitioner’s own admission that he refused to allow access to his backyard since January 2020 was a critical factor. The evidence established that the HOA had consistently maintained the front yard and made multiple, documented attempts to access the backyard.

• Conclusions of Law: The judge concluded that while § 5.1(a) of the CC&Rs requires the HOA to maintain yards, “nothing therein requires Respondent to maintain an individual member’s pool.” Because the Petitioner denied access, he could not establish that the Respondent had violated any CC&R.

Rehearing and Final Decision (February 12, 2021)

After the Commissioner for the Department of Real Estate granted a rehearing, the judge again reviewed the case and ultimately dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”

• Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish by a preponderance of the evidence that the HOA was legally obligated to maintain his pool and hardscape. The Petitioner failed to offer any definition or legal authority to support his expansive interpretation.

• Analysis of “Landscaping”: The judge found that the common definitions of “landscaping” from various dictionary and legal sources “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”

• Arizona Registrar of Contractors (ROC) Licensing: The judge’s conclusion was decisively reinforced by the State of Arizona’s contractor licensing classifications:

◦ The R-21 Hardscaping and Irrigation Systems license (formerly Landscaping) is for installing garden walls, irrigation, and other landscape features. It specifically precludes the licensee from contracting for “swimming pools, pool deck coatings.”

◦ The R-6 Swimming Pool Service and Repair license is a separate classification required to service residential pools.

◦ The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services.”

• Final Order: The petition was dismissed. The judge noted that because the Petitioner denied access, the Respondent was not in violation. However, the judge provided a forward-looking recommendation: “it is reasonable, going forward, for Respondent to communicate the days and times that it will be performing the landscaping of Petitioner’s back yard so that Petitioner can provide access for that service while maintaining safety precautions.”

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.

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

2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?

3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?

4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?

5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?

7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?

8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?

9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?

10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?

——————————————————————————–

Answer Key

1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.

2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.

3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.

4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.

5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”

6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.

7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.

8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.

9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”

10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.

1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.

2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?

3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?

4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?

5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.

Concierge Landscape Services

A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.

Office of Administrative Hearings

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.

Xeriscape

A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.

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

2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?

3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?

4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?

5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?

7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?

8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?

9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?

10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?

——————————————————————————–

Answer Key

1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.

2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.

3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.

4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.

5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”

6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.

7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.

8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.

9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”

10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.

1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.

2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?

3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?

4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?

5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.

Concierge Landscape Services

A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.

Office of Administrative Hearings

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.

Xeriscape

A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.

Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (HOA attorney)
    Represented Respondent Rancho Del Oro Homeowners Association
  • Diana Crites (property manager)
    Crites and Associates
    Owner of Respondent’s property management company; appeared as witness
  • Rian Baas (witness)
    Mowtown Landscape
    Owner of landscaping company contracted by Respondent
  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Listed as recipient of the decision
  • Luis (employee)
    Mowtown Landscape (Implied)
    Crew member mentioned in text message regarding attempted access to petitioner's yard
  • Jill (employee)
    Mowtown Landscape (Implied)
    Printed papers for Luis regarding access to petitioner's yard

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

John R. Ashley v. Rancho Reyes II Community Association, Inc.

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 20F-H2019032-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-08-11
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R Ashley Counsel —
Respondent Rancho Reyes II Community Association, Inc. Counsel Wendy Erlich

Alleged Violations

Bylaws Article III, Section 4

Outcome Summary

The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.

Why this result: Petitioner failed to carry the burden of proof. The Bylaws were interpreted as a contract whose unambiguous terms (Article III, Section 4) do not support the Petitioner's claim regarding Board quorum at member meetings.

Key Issues & Findings

Failure to establish a quorum of Board members at membership meetings

Petitioner alleged Respondent violated Bylaws Article III, Section 4 by conducting member-meetings without a quorum of Board members present. The ALJ concluded the cited Bylaw provision was unambiguous and imposed no such requirement, only defining a quorum as 1/10th of the membership votes for action at a member meeting.

Orders: The Administrative Law Judge dismissed the petition following the rehearing, concluding the Petitioner had not shown the Respondent violated the cited Bylaws provision.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA, Bylaws, Quorum, Contract Interpretation, Dismissal, Rehearing
Additional Citations:

  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Ariz. Rev. Stat. § 32-2199.01

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Video Overview

Audio Overview

Decision Documents

20F-H2019032-REL-RHG Decision – 814023.pdf

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20F-H2019032-REL-RHG Decision – ../20F-H2019032-REL/772795.pdf

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Briefing Document: Ashley v. Rancho Reyes II Community Association, Inc.

Executive Summary

This document synthesizes the key facts, arguments, and legal rulings in the administrative case of John R Ashley v. Rancho Reyes II Community Association, Inc. (No. 20F-H2019032-REL). The central issue revolved around Petitioner John R. Ashley’s allegation that the Respondent, his homeowners’ association, violated its bylaws by conducting member meetings without a quorum of its Board of Directors present.

The Administrative Law Judge (ALJ) ultimately dismissed the petition, a decision that was upheld after a full rehearing. The core of the ruling rested on a plain-text interpretation of the association’s bylaws. The ALJ found that Bylaws Article III, Section 4 unambiguously defines a quorum for member meetings as one-tenth (1/10th) of the general membership, with no requirement for a Board quorum. The separate requirements for a Board quorum are distinctly located in Article VI, which governs meetings of the Directors.

The Petitioner’s arguments—that the Board constituted a separate “class of member” requiring a quorum and that Robert’s Rules of Order should apply—were found to be unsubstantiated by evidence. The ALJ concluded that the Petitioner failed to meet his burden of proof, and the Respondent association was deemed the prevailing party in the matter.

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Case Background and Procedural History

Parties Involved

Entity / Individual

Petitioner

John R. Ashley

Respondent

Rancho Reyes II Community Association, Inc.

Attorney for Respondent

Wendy Erlich, Esq.

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Thomas Shedden, Administrative Law Judge

Oversight Agency

Arizona Department of Real Estate

Core Allegation

The petitioner, John R. Ashley, filed a single-issue petition on or around December 9, 2019. He alleged that the Rancho Reyes II Community Association, Inc. violated its bylaws, specifically Article III, Section 4, by failing to establish a quorum of its Board of Directors at the annual membership meetings held in December 2017 and December 2018.

Procedural Timeline

• c. December 9, 2019: John R. Ashley files a petition with the Arizona Department of Real Estate.

• February 10, 2020: The Respondent files a Motion to Dismiss Petition, arguing that the cited bylaw does not require a Board quorum at member meetings.

• February 18, 2020: Mr. Ashley files a notice confirming his single issue is the alleged violation of Article III, Section 4.

• March 3, 2020: The ALJ, Thomas Shedden, grants the Respondent’s Motion to Dismiss. The hearing scheduled for March 16, 2020 is vacated.

• March 10, 2020: Mr. Ashley files a Request for Rehearing with the Department of Real Estate.

• March 27, 2020: The Department of Real Estate issues an Order Granting Rehearing.

• July 28, 2020: A full rehearing is conducted at the OAH. Mr. Ashley testifies on his own behalf; the Respondent is represented by counsel but presents no witnesses.

• August 11, 2020: The ALJ issues a final decision after the rehearing, once again dismissing Mr. Ashley’s petition.

Analysis of the Central Dispute: Bylaw Interpretation

The case hinged entirely on the interpretation of the quorum requirements as defined in the association’s bylaws. The Petitioner and Respondent presented conflicting views on the applicability of these rules to member meetings versus director meetings.

Petitioner’s Position (John R. Ashley)

• Primary Argument: Mr. Ashley asserted that Article III, Section 4 required a quorum of the Board of Directors to be present at all meetings of the general membership.

• “Board Membership Class” Theory: He argued that the Board of Directors constituted a third “class of member” alongside homeowners and the original developers. Under this theory, this “class” would need its own quorum at member meetings. The ALJ found no substantial evidence to support the existence of this class in the bylaws.

• Reliance on Robert’s Rules of Order: Mr. Ashley referenced Robert’s Rules of Order to support his position. However, he presented no evidence to show that these rules were incorporated into the association’s Articles of Incorporation, Declaration, or Bylaws, making them inapplicable under the tribunal’s statutory authority.

Respondent’s Position (Rancho Reyes II Community Association, Inc.)

• Plain Text Interpretation: The Respondent argued that Article III, Section 4 is unambiguous and applies solely to the quorum requirements for the general membership, not the Board of Directors.

• Distinct Quorum Rules: The association contended that the bylaws clearly separate the rules for member meetings (Article III) from the rules for director meetings (Article VI). Article VI, Section 3 explicitly sets the quorum for the transaction of business by the Board of Directors.

Controlling Bylaw Provisions

Article

Pertinent Text / Description

Article III, Section 4

Meetings of Members; Quorum

“The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, one-tenth (1/10th) of the votes of each class of membership will constitute a quorum for any action except as otherwise provided…”

Article VI, Section 3

Meetings of Directors; Quorum

Sets out the quorum requirements specifically for Board of Director meetings, showing that a majority of Directors constitutes a quorum for the transaction of business.

Administrative Law Judge’s Findings and Rulings

The ALJ’s decisions, both in the initial dismissal and the final order after rehearing, were consistent and based on established principles of contract law and the evidence presented.

Initial Dismissal (March 3, 2020)

In the initial order, the ALJ granted the Respondent’s Motion to Dismiss based on a direct reading of the bylaws. The ruling stated:

• The bylaws are a contract between the parties.

• The terms of Article III, Section 4 are unambiguous and contain “no requirement for a quorum of Board members to be present at a meeting of the membership.”

• Because the bylaw does not contain the requirement alleged by Mr. Ashley, a violation could not have occurred.

Rehearing Decision (August 11, 2020)

The rehearing allowed for a more extensive review but ultimately affirmed the initial conclusion. The ALJ made several key Conclusions of Law:

• Burden of Proof: Mr. Ashley, as the petitioner, bore the burden of proving his case by a preponderance of the evidence.

• Bylaws as Contract: Citing legal precedent (McNally v. Sun Lakes Homeowners Ass’n #1, Inc.), the decision reiterated that bylaws function as a binding contract.

• Unambiguous Terms: The tribunal is required to give effect to the unambiguous terms of a contract. Article III, Section 4 was found to be clear and unambiguous in its meaning.

• Lack of Evidence: Mr. Ashley failed to present substantial evidence for his key claims:

◦ He did not show that Robert’s Rules of Order were applicable to the matter.

◦ He did not show that the bylaws included a “Board membership class.”

• Final Conclusion: Because Article III, Section 4 does not require a quorum of Board members at a member meeting, Mr. Ashley failed to prove by a preponderance of the evidence that the Respondent had violated it.

Final Order and Implications

Based on the findings from the rehearing, the Administrative Law Judge issued a final, binding order on August 11, 2020.

• Order: “IT IS ORDERED that Petitioner John R. Ashley’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Reyes II Community Association, Inc., was deemed the prevailing party in the matter.

• Appeal Rights: The order noted that, as a decision resulting from a rehearing, it is binding on the parties. Any further appeal must be sought through judicial review by filing with the superior court within thirty-five days from the date of service, as prescribed by Arizona Revised Statutes.

Study Guide: Case No. 20F-H2019032-REL

This guide is designed to review the key facts, legal arguments, and procedural history of the administrative case involving John R. Ashley and the Rancho Reyes II Community Association, Inc.

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, using only the information provided in the source documents.

1. Who were the Petitioner and Respondent in case No. 20F-H2019032-REL, and what was the primary institution hearing the case?

2. What was the central allegation made by John R. Ashley in his initial petition filed on December 9, 2019?

3. According to the provided documents, what did Bylaws Article III, Section 4 actually require to establish a quorum for a meeting of the members?

4. On what grounds did the Respondent, Rancho Reyes II Community Association, Inc., file its Motion to Dismiss?

5. What was the initial outcome of Mr. Ashley’s petition, as decided in the Administrative Law Judge Decision dated March 3, 2020?

6. Upon what legal standard did the Administrative Law Judge state that bylaws should be interpreted, and what two court cases were cited to support this principle?

7. During the rehearing, Mr. Ashley introduced an argument about different “classes of membership.” What was this argument, and why was it rejected?

8. What role did Robert’s Rules of Order play in Mr. Ashley’s arguments, and what was the tribunal’s official position on construing these rules?

9. What is the standard of proof required in this matter, and which party bore the burden of meeting it?

10. What was the final order issued on August 11, 2020, and what was the specified recourse for a party wishing to appeal it?

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Answer Key

1. The Petitioner was John R. Ashley, and the Respondent was Rancho Reyes II Community Association, Inc. The case was heard in the State of Arizona’s Office of Administrative Hearings (OAH).

2. Mr. Ashley’s central allegation was that the Respondent violated its own Bylaws, specifically Article III, Section 4, by conducting member meetings in December 2017 and December 2018 without a quorum of Board members present.

3. Bylaws Article III, Section 4 required the presence of members or proxies entitled to cast one-tenth (1/10th) of the votes of each class of membership. It contained no provision requiring a quorum of the Board of Directors to be present at a member meeting.

4. The Respondent filed its Motion to Dismiss on the grounds that the petition should be dismissed because Article III, Section 4 of the Bylaws is unambiguous and does not require a quorum of Board members to be present for a meeting of the members.

5. The Administrative Law Judge granted the Respondent’s Motion to Dismiss in an order dated March 3, 2020. Mr. Ashley’s petition was dismissed, and the hearing scheduled for March 16, 2020, was vacated.

6. The judge stated that the Bylaws are a contract between the parties, and unambiguous terms must be given effect. The cases cited were McNally v. Sun Lakes Homeowners Ass’n #1, Inc. and Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

7. Mr. Ashley argued that a “Board membership class” existed and that Article III, Section 4 required a quorum of this class. The argument was rejected because he presented no substantial evidence that the Bylaws included such a class.

8. Mr. Ashley argued that Robert’s Rules of Order supported his position. The tribunal determined that construing these rules was not within the scope of its authority and noted that Mr. Ashley failed to provide evidence showing the rules were part of the association’s governing documents.

9. The standard of proof was a “preponderance of the evidence.” The Petitioner, Mr. Ashley, bore the burden of proof on all issues in the matter.

10. The final order, issued after the rehearing, was that Mr. Ashley’s petition was dismissed and the Respondent was deemed the prevailing party. A party wishing to appeal the order was required to seek judicial review with the superior court within thirty-five days from the date the order was served.

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Essay Questions

Instructions: The following questions are designed to test a deeper, synthesized understanding of the case. Formulate comprehensive responses based on the details in the source documents.

1. Discuss the legal reasoning used by the Administrative Law Judge to dismiss the petition, referencing the specific bylaws (Article III, Section 4 and Article VI, Section 3) and legal precedents cited in the decision.

2. Analyze the evolution of John R. Ashley’s arguments from his initial petition to the rehearing. How did his claims change, and why were they ultimately unsuccessful according to the final decision?

3. Explain the distinction between a quorum for a “Meeting of Members” and a “Meeting of Directors” as outlined in the Rancho Reyes II Community Association’s Bylaws. How was this distinction central to the case’s outcome?

4. Describe the procedural timeline of the case from the initial filing on December 9, 2019, to the final order after rehearing on August 11, 2020. What were the key procedural steps and decisions made by the Office of Administrative Hearings and the Department of Real Estate?

5. Based on the legal standards cited in the decision, explain the concepts of “burden of proof” and “preponderance of the evidence.” How did these standards apply to Mr. Ashley’s case and contribute to its dismissal?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, such as Thomas Shedden in this case.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this matter, the burden of proof was on the Petitioner, John R. Ashley.

Bylaws

A set of rules governing the internal management of an organization, such as a homeowners association. In this case, they are treated as a binding contract between the association and its members.

Department of Real Estate

The Arizona state agency that has authority over planned communities and homeowner associations, and which granted Mr. Ashley’s request for a rehearing.

Judicial Review

The process by which a party can appeal a decision from an administrative agency (like the OAH) to a court of law (the superior court).

Motion to Dismiss

A formal request filed by a party asking for a case to be dismissed. In this matter, the Respondent filed one arguing that the petitioner’s claim had no legal basis under the Bylaws.

Office of Administrative Hearings (OAH)

The state agency that conducts impartial hearings for other state agencies. The OAH is located at 1740 West Adams Street, Phoenix, Arizona.

Petitioner

The party who initiates a legal action or petition. In this case, John R. Ashley.

Preponderance of the Evidence

The standard of proof in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party who wins a legal dispute. The Respondent was deemed the prevailing party in the final order.

Quorum

The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.

Rehearing

A second hearing of a case, granted in this matter by the Department of Real Estate after the initial petition was dismissed.

Respondent

The party against whom a petition is filed. In this case, Rancho Reyes II Community Association, Inc.

4 Surprising Legal Lessons from One Man’s Fight With His Homeowners Association

Introduction: The Rules We All Live By

If you live in a planned community, condominium, or cooperative, you live by a set of rules. For the most part, we assume these governing documents—like the bylaws of a Homeowners Association (HOA)—are straightforward. We pay our dues, keep our lawns tidy, and expect the association to manage the common areas.

But what happens when there’s a disagreement over what those rules actually mean? Disputes can arise from simple misunderstandings, and the consequences can be more complex than anyone anticipates.

A close look at a real administrative case, the dispute between John R. Ashley and the Rancho Reyes II Community Association, reveals some surprisingly impactful lessons about how community rules are interpreted in a legal setting. His fight provides a playbook of critical legal principles, revealing how the literal text of community documents can override common assumptions and even procedural standards.

The Takeaways

Here are the core lessons that emerged from the Administrative Law Judge’s decisions in the case.

The most fundamental principle guiding the judge’s decision was simple: an HOA’s bylaws are not just a set of community guidelines. They are a formal, legally binding contract between the association and its members. This concept was directly referenced from a previous case, McNally v. Sun Lakes Homeowners Ass’n #1, Inc.

This contractual nature means that the exact terms must be followed to the letter by both parties—the homeowners and the association’s board. This means that when a document’s language is unambiguous, a court will not consider outside evidence or ‘common sense’ understandings to alter its meaning. The words on the page are all that matters. The judge’s decision underscored this point with a powerful statement:

and the parties are required to comply with the terms of that contract.

A core legal principle is that when the terms of a contract are clear and unambiguous, they must be given their plain and ordinary meaning. You cannot add requirements that simply aren’t there.

Mr. Ashley’s entire case rested on his belief that a quorum of the Board of Directors was required to be present at member meetings. However, the Administrative Law Judge dismissed this argument by pointing directly to the text of the bylaws. Article III, Section 4, which governs member meetings, only required a quorum of “one-tenth (1/10th) of the votes of each class of membership.”

A separate section, Article VI, set the quorum requirements for Board meetings. The judge noted this clear distinction, stating that the tribunal is required to “give effect to those unambiguous terms.” This demonstrates a crucial principle of contract law: the structure of the document is part of its meaning. A requirement located under the ‘Meetings of Directors’ article cannot be unilaterally applied to the ‘Meetings of Members’ article.

In his petition, Mr. Ashley referenced Robert’s Rules of Order to support his position on meeting procedures. Many organizations use this manual as a standard for conducting business, and it’s often assumed to be a universal default.

However, the judge found this argument irrelevant. Why? Because Mr. Ashley “presented no evidence to show that Roberts Rules are part of the ‘Articles of Incorporation, the Declaration, or [the] Bylaws.'” The judge also noted that interpreting such external rules was not within the tribunal’s authority. This provides a critical lesson: external standards, no matter how common, only apply if an organization’s own governing documents explicitly adopt them.

Just as external rules can’t be imported without being explicitly adopted, internal rules cannot be invented out of thin air, as Mr. Ashley’s next argument demonstrated.

During a rehearing, Mr. Ashley presented a creative but ultimately unsuccessful argument. He claimed that the Board of Directors constituted a “third class of member” and, therefore, required its own separate quorum at member meetings according to the language in Article III, Section 4.

The Administrative Law Judge swiftly rejected this novel interpretation. The decision concluded that Mr. Ashley “did not present substantial evidence that the Bylaws include a ‘Board membership class.'” This final point reinforces the central theme: arguments must be grounded in the literal text of the contract (the bylaws). This underscores the ultimate lesson: the burden of proof was on Mr. Ashley to show his interpretations were supported by the text. His failure to do so, both in referencing Robert’s Rules and in proposing a new ‘Board membership class,’ was the foundation of the judge’s decision.

Conclusion: Read the Fine Print

The dismissal of John R. Ashley’s petition is a stark reminder for every homeowner living under association rules. In the world of community governance, good intentions, common practices, and creative interpretations take a back seat. Precision, clarity, and—above all—the literal text of the governing documents are paramount.

When was the last time you read the specific documents that govern your own community?

Case Participants

Petitioner Side

  • John R Ashley (petitioner)
    Appeared on his own behalf

Respondent Side

  • Wendy Erlich (respondent attorney)
    Wendy Erlich Attorney PLLC
    Represented Rancho Reyes II Community Association, Inc.

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • AHansen (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • djones (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • DGardner (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • ncano (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission

Other Participants

  • A. Leverette (clerical staff)
    Signed document transmission in initial order