Tag Archives: A.A.C. R2-19-119

Carl-Mitchell Smoot v. Los Reyes Homeowners Association Inc.

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Case Summary

Case ID 22F-H2222063-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Sondra J. Vanella
Outcome The ALJ affirmed the Petitioner's position that the HOA's denial of artificial turf violated CC&Rs Section 8.8. The ALJ found that because maintenance was shared and the HOA's CC&Rs cannot contradict the superior McCormick Ranch rules (which allow artificial turf), the denial was improper and the HOA failed to meet the exemption requirements under A.R.S. § 33-1819(B).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Smoot Carl-Mitchell Counsel Stewart F. Gross, Esq.
Respondent Los Reyes Homeowners Association Inc. Counsel Michael S. McLeran, Esq.

Alleged Violations

A.R.S. § 33-1819; CC&Rs Article VIII, Section 8.8

Outcome Summary

The ALJ affirmed the Petitioner's position that the HOA's denial of artificial turf violated CC&Rs Section 8.8. The ALJ found that because maintenance was shared and the HOA's CC&Rs cannot contradict the superior McCormick Ranch rules (which allow artificial turf), the denial was improper and the HOA failed to meet the exemption requirements under A.R.S. § 33-1819(B).

Key Issues & Findings

Architectural disapproval of landscaping plans to install artificial turf

Petitioner alleged Respondent's disapproval of his landscaping plans to install artificial turf violated the CC&Rs and was unreasonable under Arizona law. The ALJ concluded the disapproval violated CC&Rs Section 8.8 because the maintenance responsibility was shared, not exclusive to the HOA, and the HOA's CC&Rs must not contradict McCormick Ranch's Rules, which permit artificial turf.

Orders: Petitioner’s petition is affirmed. Respondent must reimburse Petitioner the $500.00 filing fee. Respondent is directed to comply with the requirements of CC&Rs Section 8.8 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1819
  • CC&Rs Article VIII, Section 8.8
  • CC&Rs Article 9.4
  • CC&Rs Article 6.2

Analytics Highlights

Topics: artificial turf, landscaping, CC&Rs, shared maintenance, architectural control, McCormick Ranch
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 33-1819
  • A.A.C. R2-19-119
  • CC&Rs Article VIII, Section 8.8
  • CC&Rs Article 9.4
  • CC&Rs Article 6.2

Video Overview

Audio Overview

Decision Documents

22F-H2222063-REL Decision – 1005074.pdf

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22F-H2222063-REL Decision – 1005155.pdf

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22F-H2222063-REL Decision – 1023283.pdf

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22F-H2222063-REL Decision – 1029871.pdf

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22F-H2222063-REL Decision – 1049042.pdf

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22F-H2222063-REL Decision – 992691.pdf

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22F-H2222063-REL Decision – 992789.pdf

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22F-H2222063-REL Decision – 1005074.pdf

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22F-H2222063-REL Decision – 1005155.pdf

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22F-H2222063-REL Decision – 1023283.pdf

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22F-H2222063-REL Decision – 1029871.pdf

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22F-H2222063-REL Decision – 1049042.pdf

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22F-H2222063-REL Decision – 992691.pdf

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22F-H2222063-REL Decision – 992789.pdf

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The hearing concerned the matter of Carl-Mitchell Smoot (Petitioner) versus Los Reyes Homeowners Association, Inc. (Respondent), conducted before the Office of Administrative Hearings (OAH). The proceedings took place over two dates: January 25, 2023, and a further hearing on March 29, 2023.

Key Facts and Main Issue

The main issue was whether the Respondent HOA’s architectural disapproval of Petitioner’s plans to install artificial turf in his front yard violated Los Reyes CC&Rs Article VIII, Section 8.8, and was unreasonable under Arizona law. Los Reyes is a sub-association of the McCormick Ranch Property Owners Association ("McCormick Ranch"). Petitioner sought the redesign for water conservation and aesthetic improvement.

Key Arguments

  1. Respondent's Position: The HOA justified the denial primarily based on A.R.S. § 33-1819(B), which allows an association to prohibit artificial turf if it is installed in an area the association is "required to maintain or irrigate". Respondent cited its CC&Rs Section 6.2, which states the HOA "shall maintain the landscaping in the front yards of the Lots". Respondent also argued that its CC&Rs referenced the "growth of turf" (Section 8.8), anticipating only natural grass, and that artificial turf would disrupt the harmony and uniformity of the community, where all front yards consist of natural grass. Additionally, early denials cited the plans as being "conceptual" and lacking vital information.
  1. Petitioner's Position: Petitioner argued that the Los Reyes CC&Rs are silent regarding the prohibition of artificial turf. Petitioner emphasized that the Los Reyes CC&Rs Article 9.4 incorporates the superior McCormick Ranch Restrictions and Architectural Control Criteria, stipulating that Los Reyes’ rules "shall not contradict them". McCormick Ranch criteria explicitly permit artificial turf subject to quality standards and limits (e.g., typically not more than 30% of the front yard area), a condition Petitioner claimed his plan met. Petitioner further argued that the A.R.S. § 33-1819(B) exemption did not apply because maintenance responsibility is shared: while the HOA handles mowing and trimming (Section 6.2), the owner pays for and controls the irrigation water (Section 8.8).

Outcome and Legal Points

The Administrative Law Judge (ALJ) Sondra J. Vanella issued a decision on April 13, 2023, affirming Petitioner’s petition.

The ALJ concluded that Petitioner established by a preponderance of the evidence that the disapproval violated the CC&Rs. Key legal findings included:

  • The maintenance of the front yards is shared between the homeowners (who pay for and control irrigation) and the Respondent HOA.
  • Respondent’s CC&Rs are silent as to artificial turf and do not prohibit it.
  • Los Reyes cannot contradict the McCormick Ranch Rules and Regulations, which permit artificial turf, as mandated by Los Reyes CC&Rs Article 9.4.
  • The ALJ found that the installation of artificial turf, under the circumstances, would not be contrary to the "overall goal of harmony of external design".

The Order required Respondent to comply with the CC&Rs Section 8.8 going forward and to reimburse Petitioner the $500.00 filing fee.

Questions

Question

Can my HOA prohibit artificial turf if the CC&Rs don't specifically ban it?

Short Answer

Likely not. If the CC&Rs are silent regarding artificial turf and do not explicitly prohibit it, the HOA may not be able to enforce a ban, especially if a master association permits it.

Detailed Answer

The Administrative Law Judge ruled that because the HOA's CC&Rs were silent regarding artificial turf and did not explicitly prohibit it, they could not ban it. This was further reinforced because the master association's rules, which the sub-association could not contradict, explicitly permitted artificial turf.

Alj Quote

Although Respondent’s CC&Rs are silent as to artificial turf, they do not prohibit artificial turf and they shall not contradict McCormick Ranch’s Rules and Regulations.

Legal Basis

CC&Rs Construction; A.R.S. § 33-1819

Topic Tags

  • artificial turf
  • CC&Rs interpretation
  • architectural requests

Question

Can a sub-association ban artificial turf if the master association allows it?

Short Answer

No, generally a sub-association cannot contradict the master association's rules if its own governing documents prohibit such contradictions.

Detailed Answer

In this case, the sub-association's CC&Rs incorporated the master association's rules and stated they could not contradict them. Since the master association allowed artificial turf, the sub-association could not prohibit it.

Alj Quote

McCormick Ranch allows artificial turf, and Respondent cannot contradict McCormick Ranch’s Rules and Regulations according to Respondent’s CC&Rs Section 9.4.

Legal Basis

CC&Rs Section 9.4; Governing Documents Hierarchy

Topic Tags

  • master association
  • sub-association
  • conflicting rules

Question

Does the HOA mowing my front lawn give them the exclusive right to ban artificial turf under state law?

Short Answer

Not necessarily, if the maintenance is shared. If the homeowner is responsible for irrigation and replacing plants, the HOA does not have exclusive maintenance rights to prohibit turf under A.R.S. § 33-1819(B).

Detailed Answer

The HOA argued that because they mowed the lawn, they could prohibit artificial turf under A.R.S. § 33-1819(B). However, the judge found that because the homeowner paid for water and was responsible for keeping plants healthy (shared maintenance), the HOA could not use the maintenance statute to completely ban turf.

Alj Quote

In this case, it is undisputed that Petitioner pays for and can control the irrigation of his property. It is also undisputed that the maintenance of the front yards of the homes within Respondent is shared between the individual homeowners and Respondent.

Legal Basis

A.R.S. § 33-1819(B); CC&Rs Section 8.8

Topic Tags

  • maintenance responsibility
  • artificial turf
  • state statute

Question

Can an HOA deny an architectural request claiming it disrupts the 'harmony' of the neighborhood?

Short Answer

They can claim it, but a judge may overrule them if the evidence shows the improvement (like artificial turf) wouldn't actually violate the goal of harmony.

Detailed Answer

The HOA denied the request based on the 'overall goal of harmony,' arguing that artificial turf would look different from the natural grass in the neighborhood. The judge reviewed the evidence and concluded that installing artificial turf would not actually be contrary to the goal of harmony.

Alj Quote

The Administrative Law Judge further concludes based on the evidence presented at hearing, that the installation of artificial turf would not be contrary to the “overall goal of harmony of external design” as asserted by Respondent.

Legal Basis

Subjective Standards; Harmony Provisions

Topic Tags

  • architectural control
  • harmony
  • aesthetics

Question

Who has the burden of proof when a homeowner challenges an HOA decision?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation by a preponderance of the evidence.

Detailed Answer

The decision explicitly states that in these administrative hearings, the Petitioner (the homeowner filing the complaint) bears the burden of proving that the HOA violated its governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated its CC&Rs Article VIII, Section 8.8.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to reimburse the $500.00 filing fee the homeowner paid to bring the case.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Can the HOA deny my plans for being 'conceptual' if I provided specific details?

Short Answer

No. If the plans include specific information like plant types, numbers, and dimensions, the HOA cannot validly deny them as merely 'conceptual'.

Detailed Answer

The HOA denied the application claiming plans were 'conceptual.' The judge noted the plans contained specific types and numbers of plants, dimensions, and detailed renderings, and ultimately ruled the disapproval was a violation.

Alj Quote

Those plans contain the types and number of plants proposed, and the dimensions and shape of the area of artificial turf, and detailed renderings.

Legal Basis

Reasonableness of Approval Process

Topic Tags

  • architectural plans
  • application denial
  • reasonableness

Case

Docket No
22F-H2222063-REL
Case Title
Smoot Carl-Mitchell v. Los Reyes Homeowners Association, Inc.
Decision Date
2023-04-13
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA prohibit artificial turf if the CC&Rs don't specifically ban it?

Short Answer

Likely not. If the CC&Rs are silent regarding artificial turf and do not explicitly prohibit it, the HOA may not be able to enforce a ban, especially if a master association permits it.

Detailed Answer

The Administrative Law Judge ruled that because the HOA's CC&Rs were silent regarding artificial turf and did not explicitly prohibit it, they could not ban it. This was further reinforced because the master association's rules, which the sub-association could not contradict, explicitly permitted artificial turf.

Alj Quote

Although Respondent’s CC&Rs are silent as to artificial turf, they do not prohibit artificial turf and they shall not contradict McCormick Ranch’s Rules and Regulations.

Legal Basis

CC&Rs Construction; A.R.S. § 33-1819

Topic Tags

  • artificial turf
  • CC&Rs interpretation
  • architectural requests

Question

Can a sub-association ban artificial turf if the master association allows it?

Short Answer

No, generally a sub-association cannot contradict the master association's rules if its own governing documents prohibit such contradictions.

Detailed Answer

In this case, the sub-association's CC&Rs incorporated the master association's rules and stated they could not contradict them. Since the master association allowed artificial turf, the sub-association could not prohibit it.

Alj Quote

McCormick Ranch allows artificial turf, and Respondent cannot contradict McCormick Ranch’s Rules and Regulations according to Respondent’s CC&Rs Section 9.4.

Legal Basis

CC&Rs Section 9.4; Governing Documents Hierarchy

Topic Tags

  • master association
  • sub-association
  • conflicting rules

Question

Does the HOA mowing my front lawn give them the exclusive right to ban artificial turf under state law?

Short Answer

Not necessarily, if the maintenance is shared. If the homeowner is responsible for irrigation and replacing plants, the HOA does not have exclusive maintenance rights to prohibit turf under A.R.S. § 33-1819(B).

Detailed Answer

The HOA argued that because they mowed the lawn, they could prohibit artificial turf under A.R.S. § 33-1819(B). However, the judge found that because the homeowner paid for water and was responsible for keeping plants healthy (shared maintenance), the HOA could not use the maintenance statute to completely ban turf.

Alj Quote

In this case, it is undisputed that Petitioner pays for and can control the irrigation of his property. It is also undisputed that the maintenance of the front yards of the homes within Respondent is shared between the individual homeowners and Respondent.

Legal Basis

A.R.S. § 33-1819(B); CC&Rs Section 8.8

Topic Tags

  • maintenance responsibility
  • artificial turf
  • state statute

Question

Can an HOA deny an architectural request claiming it disrupts the 'harmony' of the neighborhood?

Short Answer

They can claim it, but a judge may overrule them if the evidence shows the improvement (like artificial turf) wouldn't actually violate the goal of harmony.

Detailed Answer

The HOA denied the request based on the 'overall goal of harmony,' arguing that artificial turf would look different from the natural grass in the neighborhood. The judge reviewed the evidence and concluded that installing artificial turf would not actually be contrary to the goal of harmony.

Alj Quote

The Administrative Law Judge further concludes based on the evidence presented at hearing, that the installation of artificial turf would not be contrary to the “overall goal of harmony of external design” as asserted by Respondent.

Legal Basis

Subjective Standards; Harmony Provisions

Topic Tags

  • architectural control
  • harmony
  • aesthetics

Question

Who has the burden of proof when a homeowner challenges an HOA decision?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation by a preponderance of the evidence.

Detailed Answer

The decision explicitly states that in these administrative hearings, the Petitioner (the homeowner filing the complaint) bears the burden of proving that the HOA violated its governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated its CC&Rs Article VIII, Section 8.8.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to reimburse the $500.00 filing fee the homeowner paid to bring the case.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Can the HOA deny my plans for being 'conceptual' if I provided specific details?

Short Answer

No. If the plans include specific information like plant types, numbers, and dimensions, the HOA cannot validly deny them as merely 'conceptual'.

Detailed Answer

The HOA denied the application claiming plans were 'conceptual.' The judge noted the plans contained specific types and numbers of plants, dimensions, and detailed renderings, and ultimately ruled the disapproval was a violation.

Alj Quote

Those plans contain the types and number of plants proposed, and the dimensions and shape of the area of artificial turf, and detailed renderings.

Legal Basis

Reasonableness of Approval Process

Topic Tags

  • architectural plans
  • application denial
  • reasonableness

Case

Docket No
22F-H2222063-REL
Case Title
Smoot Carl-Mitchell v. Los Reyes Homeowners Association, Inc.
Decision Date
2023-04-13
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carl-Mitchell Smoot (petitioner)
    Los Reyes Homeowners Association, Inc. (Member)
    Former HOA President/Treasurer
  • Stewart F. Gross (petitioner attorney)
    Law Offices of Stewart F. Gross, PLLC

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
  • Denise Mueller (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA Vice President; ALC Member
  • Dawn Feigert (property manager/witness)
    Trestle Management Group
    Senior Manager at HOA management company
  • Timothy Fischer (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA Treasurer; ALC Member
  • Kirk Nelson (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA President; ALC Member
  • Jan Greenfield (board member)
    Los Reyes Homeowners Association, Inc.
    Former ARC Chair

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Presided over hearings and issued final decision
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
    Listed in transmission records prior to final decision
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Listed in final decision transmission
  • Tammy L. Eigenheer (ALJ)
    OAH
    Presided over initial continuances
  • c. serrano (OAH Staff)
    OAH
    Document processor

Other Participants

  • Valerie (McCormick Ranch Staff)
    McCormick Ranch Property Owners Association
    Contact regarding compliance

Carolyn Wefsenmoe v. Summit View Homeowner’s Association

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Case Summary

Case ID 23F-H017-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-08
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carolyn Wefsenmoe Counsel —
Respondent Summit View Homeowner's Association Counsel Chad M. Gallacher, Esq.

Alleged Violations

CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes

Outcome Summary

The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).

Key Issues & Findings

HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.

Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • CC&R Article XI, Section 1
  • CC&R Article XI, Section 2
  • CC&R Article XI, Section 3
  • Summit View Community Plat Notes

Analytics Highlights

Topics: HOA, Maintenance, Perimeter Walls, CC&R, Common Area, Burden of Proof, NAOS, Lot Line Dispute
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119
  • CC&R Article XI, Section 1
  • CC&R Article XI, Section 2
  • CC&R Article XI, Section 3
  • Summit View Plat Notes

Video Overview

Audio Overview

Decision Documents

23F-H017-REL Decision – 1018596.pdf

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23F-H017-REL Decision – 1018616.pdf

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23F-H017-REL Decision – 1031301.pdf

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23F-H017-REL Decision – 1032541.pdf

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23F-H017-REL Decision – 1032542.pdf

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23F-H017-REL Decision – 1032543.pdf

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23F-H017-REL Decision – 1032544.pdf

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23F-H017-REL Decision – 1032545.pdf

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23F-H017-REL Decision – 1032546.pdf

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23F-H017-REL Decision – 1032547.pdf

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23F-H017-REL Decision – 1035846.pdf

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23F-H017-REL Decision – 1018596.pdf

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23F-H017-REL Decision – 1018616.pdf

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23F-H017-REL Decision – 1031301.pdf

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23F-H017-REL Decision – 1032541.pdf

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23F-H017-REL Decision – 1032542.pdf

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23F-H017-REL Decision – 1032543.pdf

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23F-H017-REL Decision – 1032544.pdf

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23F-H017-REL Decision – 1032545.pdf

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23F-H017-REL Decision – 1032546.pdf

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23F-H017-REL Decision – 1032547.pdf

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23F-H017-REL Decision – 1035846.pdf

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This summary addresses the legal case hearing concerning Petitioner Carolyn Wefsenmoe versus Respondent Summit View Homeowner's Association (SVHA), Case No. 23F-H017-REL, held before the Office of Administrative Hearings (OAH) on February 21, 2023.

Key Facts and Main Issue

The dispute centered on the maintenance responsibility for the subdivision's perimeter walls and the SVHA's action of charging homeowners for repairs. Petitioner Wefsenmoe alleged the SVHA violated community documents, specifically CC&R's Article XI, Sections 1, 2, and 3, and the Summit View Community Plat Notes, by refusing to maintain the walls. The SVHA, represented by Chad Gallacher, Esq., argued the walls were located on individual Lots, making maintenance the homeowner's responsibility.

Key Legal Arguments and Proceedings

  1. Plat vs. CC&Rs: Petitioner relied heavily on language in the June 1996 Final Plat Notes, which stated that a Homeowners Association "WILL BE FORMED AND HAVE RESPONSIBILITY FOR MAINTAINING ALL COMMON AREAS, TO BE NOTED AS… SUBDIVISION PERIMETER WALLS". Petitioner noted that her wall abutted the Natural Area Open Space (NAOS), designated as a Common Area.
  2. Governing Documents Hierarchy: Respondent countered that the Plat statement was a "forecasting" or "foreshadowing". This statement was qualified by the phrase "IN ACCORDANCE WITH APPROVED PLANS," referring to the later Amended and Restated Declaration of Covenants, Conditions and Restrictions (CC&Rs) recorded in 2004.
  3. Lot Owner Responsibility: The SVHA argued that the CC&Rs placed maintenance burdens on the individual owner for all improvements on their Lot (Article III, Section 3). Furthermore, specific CC&R provisions required owners to obtain written architectural approval to perform maintenance or erect walls on their Lots (Article VIII, Sections 5 and 15), suggesting the maintenance obligation rested with the homeowner.
  4. Evidence of Location and Damage: The SVHA presented testimony that the walls in question were generally understood to be built on the individual lots, noting that the wall lines were not uniformly straight across the lots. SVHA's witness, Vic Smith, also testified that many wall damages were attributable to poor drainage and water runoff coming from the homeowner's Lot side, not the NAOS Common Area, which had no watering.
  5. Burden of Proof: Petitioner admitted on cross-examination that no professional survey had been conducted to definitively determine whether the walls were located on the Common Area or the individual Lots. The ALJ noted that Petitioner bore the burden of proof to establish the alleged violation by a preponderance of the evidence.

Outcome

The Administrative Law Judge (ALJ) issued a decision denying Petitioner's petition. The ALJ concluded that Petitioner failed to meet the required burden of proof. Absent persuasive evidence, such as a survey, demonstrating the walls were constructed in the Common Area, Petitioner could not establish that the SVHA was responsible for the maintenance or that the Association acted in violation of the community documents.

Questions

Question

Who has the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standards
  • burden of proof
  • procedural requirements

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • hearings

Question

If a wall touches an HOA common area, does the HOA automatically have to maintain it?

Short Answer

No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.

Detailed Answer

Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.

Alj Quote

There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • maintenance
  • common areas
  • boundaries

Question

Is a professional survey necessary to prove a boundary or maintenance dispute?

Short Answer

Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.

Detailed Answer

If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.

Alj Quote

However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.

Legal Basis

Conclusions of Law

Topic Tags

  • evidence
  • surveys
  • property lines

Question

Does the alignment of walls affect who is responsible for them?

Short Answer

Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.

Detailed Answer

In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.

Alj Quote

Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.

Legal Basis

Conclusions of Law

Topic Tags

  • maintenance
  • construction
  • HOA obligations

Question

Can I rely solely on Plat Notes to prove HOA maintenance responsibility?

Short Answer

Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.

Detailed Answer

Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.

Alj Quote

Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • cc&rs
  • plat maps
  • interpretation

Case

Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Who has the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standards
  • burden of proof
  • procedural requirements

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • hearings

Question

If a wall touches an HOA common area, does the HOA automatically have to maintain it?

Short Answer

No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.

Detailed Answer

Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.

Alj Quote

There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • maintenance
  • common areas
  • boundaries

Question

Is a professional survey necessary to prove a boundary or maintenance dispute?

Short Answer

Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.

Detailed Answer

If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.

Alj Quote

However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.

Legal Basis

Conclusions of Law

Topic Tags

  • evidence
  • surveys
  • property lines

Question

Does the alignment of walls affect who is responsible for them?

Short Answer

Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.

Detailed Answer

In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.

Alj Quote

Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.

Legal Basis

Conclusions of Law

Topic Tags

  • maintenance
  • construction
  • HOA obligations

Question

Can I rely solely on Plat Notes to prove HOA maintenance responsibility?

Short Answer

Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.

Detailed Answer

Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.

Alj Quote

Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • cc&rs
  • plat maps
  • interpretation

Case

Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carolyn Wefsenmoe (petitioner)
    Appeared via Google Meet on her own behalf

Respondent Side

  • Chad M. Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Bick Smith (witness/board president)
    Summit View Homeowner's Association
    Also referred to as Vic Smith; testified for Respondent
  • Henry (board member)
    Summit View Homeowner's Association
    Discussed erosion issues; toured walls with Bick Smith
  • Denise (board member)
    Summit View Homeowner's Association
    Participated in special board meeting
  • Larry Burns (property manager/GM)
    Summit View Homeowner's Association
    General Manager who wrote community painting update; participated in board meeting

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Transmitted minute entry to
  • James Knupp (Acting Commissioner)
    Arizona Department of Real Estate
    Transmitted order to
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Transmitted ALJ decision to
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • c. serrano (OAH Staff)
    OAH
    Signed minute entries for transmission
  • Helen Purcell (county recorder)
    Maricopa County
    Recorded Amended CC&R Declaration in 2004
  • Maria Rosana Pira (notary public)
    Maricopa County
    Notarized Amended CC&R and Bylaws in 2004

Other Participants

  • Elelliana (unknown)
    Correspondent in objected-to email exhibit
  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, P.C.
    Firm filed the Amended CC&R Declaration in 2004
  • LizzieG (customer service rep)
    Brown Community Management
    Customer service contact listed on billing document

Daniel Mayer v. Scottsdale North Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 23F-H020-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-17
Administrative Law Judge Adam D. Stone
Outcome The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Daniel Mayer Counsel —
Respondent Scottsdale North Homeowners Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1812

Outcome Summary

The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.

Key Issues & Findings

Combining two separate proposed actions into a single vote action on a ballot.

The Respondent HOA combined two separate proposed expenditures ($30,000 total for roadway asset preservation and common area gate replacement) into one vote on a ballot sent to homeowners, violating statutory requirements that each proposed action must be voted upon separately.

Orders: Respondent must abide by A.R.S. § 33-1812; Respondent must refund the Petitioner's $500.00 filing fee; Respondent must pay a $500.00 civil penalty to the Department of Real Estate.

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

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1812
  • A.R.S. § 10-3708
  • A.R.S. § 33-1812(A)(1)

Analytics Highlights

Topics: HOA Ballot, Combined Vote, Reserve Funds Access, Statutory Violation
Additional Citations:

  • A.R.S. § 33-1812
  • A.R.S. § 10-3708
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.07
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119

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Video Overview

Audio Overview

Decision Documents

23F-H020-REL Decision – 1031122.pdf

Uploaded 2026-04-24T11:59:44 (100.0 KB)

23F-H020-REL Decision – 1038504.pdf

Uploaded 2026-04-24T11:59:48 (54.8 KB)

23F-H020-REL Decision – 1031122.pdf

Uploaded 2026-01-23T17:52:58 (100.0 KB)

23F-H020-REL Decision – 1038504.pdf

Uploaded 2026-01-23T17:53:01 (54.8 KB)

This administrative hearing, docket number 23F-H020-REL, addressed the petition filed by Daniel Mayor against Scottsdale North Homeowners Association, Inc. (SNHA), concerning alleged violations of community documents and Arizona Revised Statute (A.R.S.) § 33-1812. Administrative Law Judge (ALJ) Adam D. Stone presided over the hearing on February 3, 2023.

Key Facts and Main Issues

The core issue centered on a ballot sent to homeowners on May 18, 2022, seeking approval to access $30,000 from the reserve fund for two distinct capital improvement projects: roadway asset preservation/resurfacing and common area gate replacement.

  1. Violation of Separate Voting Requirement: Petitioner Daniel Mayor argued that the ballot improperly combined these two separate "proposed actions" into a single yes/no vote, failing to provide members the opportunity to vote for or against each expenditure individually. Mayor requested that the vote be recalled and recast properly.
  2. Applicability of Statute: Respondent SNHA, represented by Board President Andrew Chambers, admitted the projects were combined but argued that A.R.S. § 33-1812 (which requires separate votes for separate actions) did not apply. SNHA contended the statute only governs votes taken at formal meetings, whereas this vote was conducted via mail, email, and fax prior to the meeting where results were announced. SNHA also noted that 91% (32 of 35) of responding homeowners approved the combined expenditure, and the projects were subsequently completed.

Legal Points and Decision

The ALJ determined that the cover letter and prior discussions clearly indicated that the roadway resurfacing and gate replacement were two separate projects for which SNHA was seeking approval.

The ALJ rejected the Association's defense, concluding that the ballot was improper because it failed to allow separate votes. The decision highlighted that A.R.S. § 33-1812, even when referring to votes taken outside of a meeting, directs attention to A.R.S. § 10-3708 (Arizona Nonprofit Corporation Act). This statute mandates that written ballots must set forth each proposed action and provide an opportunity to vote for or against each.

Outcome

The ALJ found that the Petitioner established, by a preponderance of the evidence, that SNHA acted in violation of A.R.S. § 33-1812(A)(1) and the community documents.

The ALJ noted that A.R.S. § 32-2199.02 did not grant the authority to order the projects rescinded or the vote nullified, but only permitted ordering parties to abide by the statute and levying civil penalties.

  • Prevailing Party: Daniel Mayor was deemed the prevailing party.
  • Filing Fee: SNHA was ordered to pay the Petitioner his $500.00 filing fee.
  • Civil Penalty: Due to concern that this type of improper ballot could be used in the future, the ALJ levied a $500.00 Civil Penalty. (A subsequent correction order specified that this civil penalty must be paid to the Department of Real Estate).

Questions

Question

Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?

Short Answer

No. The HOA must allow homeowners to vote for or against each proposed action separately.

Detailed Answer

Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.

Alj Quote

Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.

Legal Basis

A.R.S. § 33-1812(A)(1)-(2)

Topic Tags

  • voting
  • ballots
  • assessments

Question

If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?

Short Answer

Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.

Detailed Answer

The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.

Alj Quote

According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.

Legal Basis

A.R.S. § 33-1812; A.R.S. § 10-3708

Topic Tags

  • absentee ballots
  • voting
  • mail-in voting

Question

Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?

Short Answer

Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.

Detailed Answer

While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.

Alj Quote

The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • powers of ALJ
  • construction

Question

What is the standard of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?

Short Answer

No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.

Detailed Answer

The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.

Alj Quote

A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'

Legal Basis

A.R.S. § 33-1812(A)

Topic Tags

  • governing documents
  • statutory interpretation
  • supremacy of law

Question

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

Short Answer

Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • remedies
  • fees
  • penalties

Question

Does a majority vote of the homeowners cure a defective ballot?

Short Answer

No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.

Detailed Answer

The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.

Alj Quote

In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.

Legal Basis

A.R.S. § 33-1812

Topic Tags

  • voting results
  • procedural violations
  • compliance

Case

Docket No
23F-H020-REL
Case Title
Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
Decision Date
2023-02-17
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?

Short Answer

No. The HOA must allow homeowners to vote for or against each proposed action separately.

Detailed Answer

Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.

Alj Quote

Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.

Legal Basis

A.R.S. § 33-1812(A)(1)-(2)

Topic Tags

  • voting
  • ballots
  • assessments

Question

If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?

Short Answer

Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.

Detailed Answer

The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.

Alj Quote

According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.

Legal Basis

A.R.S. § 33-1812; A.R.S. § 10-3708

Topic Tags

  • absentee ballots
  • voting
  • mail-in voting

Question

Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?

Short Answer

Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.

Detailed Answer

While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.

Alj Quote

The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • powers of ALJ
  • construction

Question

What is the standard of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?

Short Answer

No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.

Detailed Answer

The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.

Alj Quote

A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'

Legal Basis

A.R.S. § 33-1812(A)

Topic Tags

  • governing documents
  • statutory interpretation
  • supremacy of law

Question

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

Short Answer

Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • remedies
  • fees
  • penalties

Question

Does a majority vote of the homeowners cure a defective ballot?

Short Answer

No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.

Detailed Answer

The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.

Alj Quote

In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.

Legal Basis

A.R.S. § 33-1812

Topic Tags

  • voting results
  • procedural violations
  • compliance

Case

Docket No
23F-H020-REL
Case Title
Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
Decision Date
2023-02-17
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Daniel Mayer (petitioner)
    Appeared on his own behalf
  • Mr. D'Angelo (witness)
    Petitioner's husband

Respondent Side

  • Sandy Chambers (board president)
    Scottsdale North Homeowners Association, Inc.
    Appeared on behalf of Respondent; also referred to as 'Andrew Chambers' and 'Miss Chambers' in the transcript

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Miranda (OAH staff)
    OAH
    Front desk staff mentioned by ALJ
  • James Knupp (commissioner)
    ADRE
    Acting Commissioner listed on initial transmittal
  • Susan Nicolson (commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Transmittal recipient
  • vnunez (ADRE staff)
    ADRE
    Transmittal recipient
  • labril (ADRE staff)
    ADRE
    Transmittal recipient
  • djones (ADRE staff)
    ADRE
    Transmittal recipient

Other Participants

  • jzipprich (property manager)
    Desert Management
    Email contact for Respondent HOA

Richard Busack v. The Cliffs Condominium Association

Posted on by

Case Summary

Case ID 23F-H010-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-12-16
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard Busack Counsel —
Respondent The Cliffs Condominium Association Counsel Melissa Doolan

Alleged Violations

Article III, Section 3.07 of the Declaration of Establishment of Condominium and of Declaration of Covenants, Conditions, and Restrictions for The Cliffs Condominium

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.

Why this result: The ALJ’s interpretation of Article III, Section 3.07 found that the owner of Unit 263 was responsible for the maintenance and repair of the specific section of pipe that leaked, and therefore, the HOA was not liable for the resulting damage or requested reimbursement.

Key Issues & Findings

HOA responsibility for reimbursement for kitchen cabinet and countertop replacement and mold remediation/restoration after a leaking pipe.

Petitioner sought reimbursement of $8541.00 from the HOA for damages caused by Cat 3 water coming from a leaking toilet pipe located between the ceiling of unit 163 and the subfloor of unit 263. Petitioner alleged the pipe was the HOA's responsibility as it was in the inner walls and not 'open and unobstructed' as defined by Petitioner. The ALJ determined the pipe maintenance was the responsibility of the owner of Unit 263, not the HOA, based on the plain reading of Article III, Section 3.07.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • Article III, Section 3.07 (CC&Rs)

Analytics Highlights

Topics: HOA Responsibility, CC&Rs Interpretation, Pipe Maintenance, Water Damage Reimbursement, Owner Responsibility
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • Article III, Section 3.07 (CC&Rs)

Video Overview

Audio Overview

Decision Documents

23F-H010-REL Decision – 1020439.pdf

Uploaded 2026-01-23T17:51:22 (91.6 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of *Richard Busack v. The Cliffs Condominium Association* (docket number 23FH010REL), heard on December 7, 2022, before Administrative Law Judge Tammy L. Eigenheer.

Key Facts and Issues

Petitioner Richard Busack filed a petition against The Cliffs Condominium Association (HOA), alleging the HOA violated Article III, Section 3.07 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The dispute stemmed from a severe water leak that occurred on or about June 1, 2022, damaging Petitioner's unit (Unit 163).

The leak originated from a broken pipe within the inner walls, specifically the toilet line coming from Unit 263. The water was identified as CAT 3 water (toilet water/scat water), leading to extensive water damage and mold in Petitioner’s kitchen, requiring cabinet replacement and mold remediation.

The HOA subsequently repaired the broken pipe and replaced the drywall. However, the HOA denied Petitioner’s claim for reimbursement for mold remediation and kitchen restoration, which totaled $8,541.00.

Key Arguments and Legal Points

The central legal issue was the interpretation and application of Article III, Section 3.07 of the CC&Rs, which governs "Maintenance By Owners".

  1. Petitioner’s Position: Petitioner argued that because the pipe broke in the "inner walls" and was not "unobstructed," it was outside his responsibility and, therefore, the HOA’s. He argued that he was only responsible if the leak originated inside his unit. Petitioner also noted that the HOA delayed response for 40 days and canceled agreed-upon cabinet repairs.
  2. Respondent’s Position (HOA): The HOA argued that based on Section 3.07, the maintenance responsibility lay with the unit owner (specifically Unit 263's owner) because the pipe was located between the point it entered Unit 263 and where it joined lines serving other units. The HOA asserted that Petitioner provided no evidence (official reports) proving mold damage or that the HOA acted negligently. They repaired the drywall only because bearing walls are considered Common Elements under a separate section (3.05).

Outcome and Final Decision

The Administrative Law Judge (ALJ) issued an Administrative Law Judge Decision on December 16, 2022.

  1. Interpretation of CC&Rs: The ALJ found Petitioner’s reading of Article III, Section 3.07 to be erroneous. The section clearly states that the owner is responsible for the maintenance, repair, and replacement of all utility lines "serving an Owner’s respective Condominium Unit between the points at which the same enter the respective Condominium Unit and the points where the same joins the utility lines serving other Condominium Units".
  2. Pipe Responsibility: The ALJ concluded that the maintenance of the leaking pipe, which Petitioner acknowledged was between the point it entered Unit 263 and where it joined the utility lines serving other units, was the responsibility of the owner of Unit 263.
  3. "Open and Unobstructed Condition": The ALJ clarified that the phrase "open and unobstructed condition" refers to the pipe itself not being *clogged*, not whether the pipe is accessible (i.e., not inside a wall).
  4. Order: The Petitioner failed to prove by a preponderance of the evidence that the HOA violated Article III, Section 3.07. Therefore, the Petitioner’s petition was denied.

Questions

Question

Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?

Short Answer

No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.

Detailed Answer

Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.

Alj Quote

Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'

Legal Basis

CC&Rs Interpretation

Topic Tags

  • maintenance responsibility
  • plumbing
  • common elements

Question

What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?

Short Answer

It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.

Detailed Answer

Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.

Alj Quote

Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.

Legal Basis

Contract Interpretation

Topic Tags

  • definitions
  • maintenance responsibility

Question

If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?

Short Answer

No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.

Detailed Answer

The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.

Alj Quote

Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.

Legal Basis

CC&Rs / Negligence

Topic Tags

  • repairs
  • liability
  • common elements

Question

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

Short Answer

The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.

Detailed Answer

The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • procedural requirements
  • burden of proof

Question

What evidence is required to win a dispute regarding water damage repairs?

Short Answer

The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.

Detailed Answer

Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.

Alj Quote

Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.

Legal Basis

CC&Rs Violation

Topic Tags

  • evidence
  • damages

Question

Can I hold the HOA responsible for a leak originating from a neighbor's unit?

Short Answer

Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.

Detailed Answer

If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.

Alj Quote

Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.

Legal Basis

CC&Rs / Liability

Topic Tags

  • neighbor disputes
  • liability
  • plumbing

Case

Docket No
23F-H010-REL
Case Title
Richard Busack v. The Cliffs Condominium Association
Decision Date
2022-12-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?

Short Answer

No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.

Detailed Answer

Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.

Alj Quote

Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'

Legal Basis

CC&Rs Interpretation

Topic Tags

  • maintenance responsibility
  • plumbing
  • common elements

Question

What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?

Short Answer

It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.

Detailed Answer

Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.

Alj Quote

Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.

Legal Basis

Contract Interpretation

Topic Tags

  • definitions
  • maintenance responsibility

Question

If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?

Short Answer

No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.

Detailed Answer

The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.

Alj Quote

Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.

Legal Basis

CC&Rs / Negligence

Topic Tags

  • repairs
  • liability
  • common elements

Question

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

Short Answer

The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.

Detailed Answer

The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • procedural requirements
  • burden of proof

Question

What evidence is required to win a dispute regarding water damage repairs?

Short Answer

The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.

Detailed Answer

Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.

Alj Quote

Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.

Legal Basis

CC&Rs Violation

Topic Tags

  • evidence
  • damages

Question

Can I hold the HOA responsible for a leak originating from a neighbor's unit?

Short Answer

Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.

Detailed Answer

If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.

Alj Quote

Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.

Legal Basis

CC&Rs / Liability

Topic Tags

  • neighbor disputes
  • liability
  • plumbing

Case

Docket No
23F-H010-REL
Case Title
Richard Busack v. The Cliffs Condominium Association
Decision Date
2022-12-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard Busack (petitioner)
  • Theresa Jensen (witness)
    Witness for Petitioner

Respondent Side

  • Melissa Doolan (respondent attorney)
    The Travis Law Firm, PLC
    Appeared for Respondent The Cliffs Condominium Association
  • Mr. Petri (HOA/management representative)
    Mentioned by Petitioner regarding dispute over damage repair
  • Mr. Honen (HOA/management representative)
    Involved in cabinet repair communication and cancellation (also referred to as Mr. Horn)
  • Miss Cohen (HOA/management representative)
    Handled initial communications and forwarded information to the Board (also referred to as Miss Cohan)

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Igner
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (legal secretary)
    Transmitted decision
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Jill Bird (observer)
  • John (observer)
  • Michael (observer)
  • Anthony Zeller (contractor associate)
    Overseeing the repair plumber

Keith Jackson v. Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 23F-H006-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-08
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge dismissed the Petition, finding that the Association did not violate A.R.S. § 33-1813 by rejecting both the initial recall petition (due to insufficient signatures) and the subsequent amended petition (which was barred by the one-petition-per-term rule for the same members).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keith Jackson Counsel —
Respondent Val Vista Lakes Community Association Counsel Eric Cook

Alleged Violations

ARS 33-1813

Outcome Summary

The Administrative Law Judge dismissed the Petition, finding that the Association did not violate A.R.S. § 33-1813 by rejecting both the initial recall petition (due to insufficient signatures) and the subsequent amended petition (which was barred by the one-petition-per-term rule for the same members).

Why this result: Petitioner failed to meet the burden of proving that the Association violated ARS § 33-1813. The second petition was barred by statute (A.R.S. § 33-1813(A)(4)(g)).

Key Issues & Findings

Improper rejection of a recall petition to remove four Board members.

Petitioner alleged the HOA improperly rejected his recall petition by misinterpreting ARS 33-1813, specifically arguing that the initial incomplete petition should not have been considered valid, thus allowing the amended petition to proceed. Respondent argued that the statute only permits one petition submission per term for the same board members (A.R.S. § 33-1813(A)(4)(g)).

Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARS 33-1813
  • ARS 33-1813(A)(4)(g)
  • ARS 33-1813(A)(4)(b)
  • ARS 33-1804
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

23F-H006-REL Decision – 1011201.pdf

Uploaded 2026-04-29T11:11:58 (113.7 KB)

23F-H006-REL Decision – 1011201.pdf

Uploaded 2026-01-23T17:50:43 (113.7 KB)

Briefing: Keith Jackson v. Val Vista Lakes Community Association (Case No. 23F-H006-REL)

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and subsequent legal decision in Case Number 23F-H006-REL, involving Petitioner Keith Jackson and Respondent Val Vista Lakes Community Association. The central conflict revolved around the proper interpretation of Arizona Revised Statutes (A.R.S.) § 33-1813, which governs the process for recalling members of a homeowner association’s board of directors.

The dispute was initiated after an initial recall petition, containing an insufficient number of signatures, was submitted to the Association’s board on July 12, 2022. A second, supplemented petition with a sufficient number of signatures was submitted on July 19, 2022. The Petitioner argued that the first submission was incomplete and therefore not a legally valid petition, meaning it should not have triggered the statute’s “one petition per term” limitation. The Respondent contended that the statute is unambiguous: once a petition is submitted, regardless of its numerical sufficiency, a second petition to recall the same board members is barred for the remainder of their terms.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision concluded that the Association did not violate the statute by rejecting the first petition for having insufficient signatures. Furthermore, the ALJ found that A.R.S. § 33-1813(A)(4)(g) clearly and unequivocally prohibits submitting more than one recall petition for the same board member during a single term of office. Consequently, the second petition was statutorily barred, and the Petitioner’s case was dismissed.

Case Overview

Parties and Key Individuals

Affiliation

Keith Jackson

Petitioner

Homeowner, Val Vista Lakes

Eric Cook

Attorney for Respondent

Lewis Brisbois Bisgaad & Smith LLP

Kay A. Abramsohn

Administrative Law Judge (ALJ)

Arizona Office of Administrative Hearings

Doug Keats

Witness for Respondent; Treasurer

Val Vista Lakes Board of Directors

K. Adams

Witness for Respondent; Secretary

Val Vista Lakes Board of Directors

Andy Ball

Individual who submitted the initial petition

Friend of Petitioner, Association Member

Kirk Kowieski

Vice President of Management Company

First Service Residential (FSR)

Bill Suttell

Board President; target of recall petition

Val Vista Lakes Board of Directors

Sharon Maiden

Board Vice President; target of recall petition

Val Vista Lakes Board of Directors

Steve Nielson

Board Member; target of recall petition

Val Vista Lakes Board of Directors

Core Legal Issue

The case centered on the interpretation of A.R.S. § 33-1813, specifically the relationship between two subsections:

1. Subsection (A)(4)(b): This section establishes the signature threshold required to compel a board to call a special meeting for a recall vote. For an association with over 1,000 members, this is “at least ten percent of the votes in the association or…at least one thousand votes…whichever is less.”

2. Subsection (A)(4)(g): This section states, “A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.”

The central question before the court was whether an initial petition that fails to meet the signature threshold of (4)(b) still constitutes a formal submission that triggers the “one petition per term” limitation of (4)(g).

Chronology of Events

July 12, 2022

At a board meeting, Andy Ball submits an initial recall petition targeting four board members. The petition contains approximately 211-214 signatures, below the required threshold.

July 15, 2022

Board President Bill Suttell notifies Association members via email that the petition has been turned over to the management company, First Service Residential (FSR), for signature vetting.

July 18, 2022

The Association officially notifies its members that the initial recall petition has been rejected “for not meeting the criteria of the law.”

July 19, 2022

Kirk Kowieski of FSR informs an Association member that “a ‘new’ (amended) petition” could be submitted.

July 19, 2022

Keith Jackson submits a second, supplemented petition containing the original signatures plus additional ones, totaling over 250 signatures.

July 25, 2022

The Board of Directors votes to reject the second petition. FSR sends an email to members stating it was rejected based on A.R.S. § 33-1813(A)(4)(g).

July 30, 2022 (approx.)

Keith Jackson files a single-issue petition with the Arizona Department of Real Estate, alleging the Board improperly rejected the recall petition.

October 24, 2022

An administrative hearing is held before ALJ Kay A. Abramsohn.

November 8, 2022

The ALJ issues a final decision, ruling in favor of the Respondent and dismissing the Petitioner’s case.

Petitioner’s Position and Arguments (Keith Jackson)

Grievances Leading to Recall Effort

Mr. Jackson testified that the recall effort was initiated due to significant community dissatisfaction with the Board’s direction. The primary concerns articulated during the hearing included:

• Lack of Transparency and Accountability: A general sentiment among members that the Board was not operating openly.

• Financial Mismanagement: The Association’s financial reserves had allegedly plummeted from $3.4 million to a projected “well under a million dollars” within the year.

• Loss of Revenue: The Board terminated the Association’s largest non-dues revenue source in an executive session without member input. Members reportedly learned of this decision through the media after a wedding was cancelled.

• Toxic Workplace Environment: The community manager and several employees had reportedly quit due to micromanagement and a poor work environment created by the Board.

Legal Argument

The Petitioner’s legal argument was founded on the principle that a petition is not legally cognizable until it meets the statutory requirements for action.

• Concept of a “Valid” Petition: Jackson argued that the initial July 12 submission was an “incomplete petition” and therefore not a “valid petition” under A.R.S. § 33-1813(A)(4)(b) because it failed to meet the signature threshold.

• Triggering the Statute: He contended that an invalid, incomplete petition should not be officially “considered” and thus should not trigger the one-petition-per-term limit in subsection (g).

• The “Amended” Petition: The only legally valid petition, in his view, was the completed version submitted on July 19, which contained over 250 signatures. He argued this was the first and only valid submission that the Board was required to act upon.

• Statutory Loophole: Jackson warned that the Association’s interpretation creates a dangerous loophole: “anyone on the board could never get recalled with the way the stat was being interpreted…you could submit any incomplete petition for anyone on the board and they would never get…recalled during their term.”

• Reliance on Management Company: Jackson pointed to Exhibit C, an email from Kirk Kowieski of FSR, stating that an “amended petition” could be submitted. Since the Board had delegated the vetting process to FSR, Jackson argued this communication affirmed the legitimacy of his second submission.

Respondent’s Position and Arguments (Val Vista Lakes Community Association)

Legal Argument

The Respondent’s counsel, Eric Cook, argued for a plain-language reading of the statute, asserting that the law is clear and binding.

• Plain Meaning of the Statute: The core of the argument was that A.R.S. § 33-1813 says what it means. It refers to “a petition,” not a “valid petition” or a “complete petition,” when establishing the one-submission limit.

• Standalone Provision: A.R.S. § 33-1813(A)(4)(g) was presented as a standalone provision. It is not contingent on whether a petition meets the signature requirements of subsection (b). Its purpose is to prevent repeated recall efforts against the same board member.

• One Chance Rule: “Section G is a standalone provision that says if you file that petition, you get that one chance.”

• Chronology is Key: A petition was submitted on July 12. It was considered and rejected. The second petition, submitted on July 19, sought to remove the same four board members. This second submission was a clear violation of subsection (g).

• Function of Subsection (b): Respondent argued that the signature threshold in subsection (b) only determines whether the Board is obligated to call a special meeting. It does not define whether a document submitted as a petition constitutes “a petition” for the purposes of the one-per-term rule.

Witness Testimony

• Doug Keats (Treasurer) and K. Adams (Secretary) both testified that they were present at the July 12 meeting when Andy Ball submitted the initial petition directly to the Board President, Bill Suttell. They affirmed this petition was the one the Board officially considered and rejected for having an insufficient number of signatures.

Administrative Law Judge’s Decision and Rationale

On November 8, 2022, ALJ Kay A. Abramsohn issued a decision dismissing Mr. Jackson’s petition, finding no violation of A.R.S. § 33-1813 by the Association.

Key Findings of Fact

• The Association has more than 1,000 members.

• The initial petition submitted on July 12, 2022, contained an insufficient number of signatures to meet the statutory threshold for compelling a recall vote.

• The second petition submitted on July 19, 2022, petitioned for the removal of the same four board members named in the first petition.

Conclusions of Law

1. Rejection of the First Petition: The ALJ concluded that the Board did not violate the statute when it rejected the July 12 petition. Since the petition did not contain the required number of signatures, the Board was under no obligation to call a special meeting.

2. Rejection of the Second Petition: The central conclusion rested on a direct interpretation of A.R.S. § 33-1813(A)(4)(g). The decision states: “a petition which calls for the removal of the same member of the board of directors ‘shall not be submitted more than once during each term of office for that member.’ Therefore, in this case, the July 19, 2022 ‘second’ petition which petitioned for the removal of the same four Board members…was not permitted by statute.”

3. Final Ruling: Because the second petition was statutorily prohibited, the Board did not violate the law by rejecting it. The ALJ concluded that the Petitioner failed to establish any violation by the Association, and the petition was therefore dismissed.

Study Guide: Johnson v. Val Vista Lakes Community Association (Case No. 23F-H006-REL)

This study guide is designed to assess and deepen understanding of the administrative hearing held on October 24, 2022, and the subsequent decision regarding the dispute between Keith Jackson and the Val Vista Lakes Community Association. The materials cover the central arguments, key figures, procedural timeline, and legal interpretations at the heart of the case.

——————————————————————————–

Quiz: Short Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the provided source materials.

1. Who are the two primary parties in this case, and what is the nature of their dispute?

2. What specific Arizona Revised Statute (A.R.S.) is the central point of legal contention, and what is its general purpose?

3. Describe the timeline and key differences between the first and second recall petitions that were submitted to the Association.

4. What was petitioner Keith Jackson’s core argument for why the first petition submitted on July 12th should have been considered invalid by the Board?

5. What was the respondent Association’s legal justification, based on the statute, for rejecting the second, “amended” petition submitted on July 19th?

6. Identify Kirk Kowieski and First Service Residential (FSR). What role did their communications and actions play in Mr. Jackson’s argument?

7. What authority does the Arizona Office of Administrative Hearings (OAH) have in this matter, and how does it relate to the Department of Real Estate?

8. According to the Administrative Law Judge’s decision, what was the legal standard Mr. Jackson had to meet, and did he succeed?

9. Identify the four board members targeted for recall and their respective positions within the Association’s board of directors.

10. What was the final order of the Administrative Law Judge in this case?

——————————————————————————–

Answer Key

1. The primary parties are Keith Jackson (the Petitioner) and the Val Vista Lakes Community Association (the Respondent). The dispute centers on whether the Association’s Board of Directors improperly rejected a recall petition initiated by Mr. Jackson to remove four board members, based on their interpretation of state law.

2. The central statute is A.R.S. § 33-1813. Its purpose is to govern the process for removing a member of a community association’s board of directors, including the requirements for calling a special meeting based on a recall petition.

3. The first petition, containing approximately 211-214 signatures, was submitted by Andy Ball on July 12, 2022. The second, “amended” petition was submitted by Keith Jackson on July 19, 2022; it included the original signatures plus an additional 37, for a total of over 250, and was intended to be a complete version.

4. Mr. Jackson argued that the first petition was mistakenly turned in as an incomplete “first batch” and therefore was not a “valid” petition under the statute. He contended that the Board could only act upon a completed petition that met the statutory signature threshold, making the initial submission legally void.

5. The Association argued that A.R.S. § 33-1813(A)(4)(g) is clear in its language. This subsection states that a petition to remove the same board member shall not be submitted more than once during that member’s term of office, and therefore the second petition was barred by statute.

6. First Service Residential (FSR) is the property management company for the Association, and Kirk Kowieski is its Vice-President. Mr. Jackson argued that an email from Mr. Kowieski (Exhibit C) confirming that an “amended petition” would be accepted showed that FSR, acting with authority from the Board, had agreed the completed petition submitted on July 19th was the only valid one.

7. The Arizona Office of Administrative Hearings (OAH) is a separate state agency that conducts hearings and makes decisions on behalf of other agencies. It does not work for the Department of Real Estate but was tasked with conducting the hearing after Mr. Jackson filed his complaint with the Department.

8. The legal standard was the “preponderance of the evidence,” meaning Mr. Jackson had to prove that it was more probable than not that the Association had violated A.R.S. § 33-1813. The Judge concluded that Mr. Jackson did not meet this burden of proof.

9. The four board members targeted were: Bill Suttell (President), Sharon Maiden (Vice-President), Doug Keats (Treasurer), and Steve Nielson (General Board Member).

10. The final order, issued on November 8, 2022, was that the Petitioner’s Petition be dismissed. The Judge found that the Board did not violate the statute when it rejected either the July 12th or the July 19th petition.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive response for each, citing specific facts, arguments, and evidence from the hearing and the final decision.

1. Analyze the competing interpretations of A.R.S. § 33-1813 as presented by the petitioner and the respondent. Explain how each party used subsections (A)(4)(b) and (A)(4)(g) to support their respective positions regarding the validity of the two petitions.

2. Discuss the role and actions of First Service Residential (FSR) and its representative, Kirk Kowieski. Evaluate the significance of FSR’s communications as evidence in the petitioner’s case and explain how the final legal decision implicitly addresses the limits of FSR’s authority.

3. Trace the complete procedural history of the recall effort, beginning with Mr. Jackson’s collection of signatures and culminating in the Administrative Law Judge’s final order. Identify key dates, actions taken by each party, and the rationale provided for each decision along the way.

4. Examine the evidence presented during the hearing, specifically Petitioner’s Exhibits A, C, D, and F, and Respondent’s Exhibit 1. Describe the content and purpose of each exhibit and analyze its effectiveness in supporting the arguments made by each side.

5. Explain the final ruling in Case No. 23F-H006-REL. Detail the Administrative Law Judge’s legal conclusions regarding both the July 12th and July 19th petitions and articulate the reasoning that led to the dismissal of Mr. Jackson’s petition.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An impartial judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, the ALJ was Kay A. Abramsohn.

A.R.S. § 33-1813

The specific Arizona Revised Statute that provides the legal framework for the removal of a board of directors member in a community association, forming the basis of the entire dispute.

Arizona Office of Administrative Hearings (OAH)

A separate state agency authorized to conduct administrative hearings and issue decisions for disputes referred by other state agencies, such as the Department of Real Estate.

Exhibit

A document or item of physical evidence introduced during a hearing to support a party’s claims. Examples include the initial petition (Respondent’s Exhibit 1) and email correspondence (Petitioner’s Exhibit C).

First Service Residential (FSR)

The property management company hired by the Val Vista Lakes Community Association to handle tasks such as maintaining records, sending community notices, and vetting petition signatures.

Homeowners Association. In this case, the Val Vista Lakes Community Association.

Petitioner

The party who initiates a legal action by filing a petition or complaint. In this case, Keith Jackson.

Preponderance of the Evidence

The burden of proof in this administrative hearing. It requires the petitioner to show that the facts they allege are more probable than not.

Recall Petition

A document signed by a required number of association members to call for a special meeting to vote on the removal of one or more members of the board of directors.

Respondent

The party against whom a petition or complaint is filed. In this case, the Val Vista Lakes Community Association.

Special Meeting

A meeting of the association members called for a specific purpose outside of regularly scheduled meetings, such as voting on a recall. The statute dictates the conditions under which the Board must call such a meeting.

Statute

A written law passed by a legislative body. The central statute in this case is A.R.S. § 33-1813.

Term of Office

The designated length of time a board member serves in their position. Under A.R.S. § 33-1813(A)(4)(g), a recall petition for the same member cannot be submitted more than once per term.

Vetting

The process of carefully examining and verifying the information presented, specifically the process FSR was tasked with to validate the signatures on the recall petition.

Their HOA Recall Had 250+ Signatures. It Was Voided by This One-Sentence Legal Booby Trap.

For many homeowners, a battle with their Homeowners Association (HOA) board is a familiar, frustrating story of feeling unheard. It was a reality that spurred homeowner Keith Jackson to action. Believing his board was failing the community, he channeled the widespread discontent of his neighbors, gathering significant support for a recall. Yet, despite his passionate efforts and clear community backing, the entire campaign was tragically derailed by a single, counter-intuitive rule, triggered by the simple, well-meaning mistake of a trusted friend.

Takeaway 1: The “One-Shot” Rule is Ironclad

The core legal issue that doomed the recall was a procedural trap hidden in plain sight. On July 12, 2022, a friend of Mr. Jackson, Andy Ball, submitted the recall petition to the board. The problem? It was incomplete and lacked the required number of signatures. According to Jackson’s testimony, his friend even tried to qualify the submission, telling the board, “here is the first batch of signatures more for coming.”

But that verbal clarification was powerless. The simple act of handing over the documents was legally considered a formal submission. This premature action triggered a critical and unforgiving clause in Arizona statute A.R.S. § 33-1813(A)(4)(g):

A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

Because the first petition was officially submitted and rejected for having insufficient signatures, the second, corrected petition—even with more than enough community support—was automatically barred. As the Administrative Law Judge’s final decision confirmed, the board was legally correct to reject the second attempt. The first try, flawed as it was, was the only one the law allowed.

Takeaway 2: Your Property Manager Isn’t Your Lawyer

This case exposes a common and dangerous misconception in community governance: the difference between operational guidance and binding legal counsel. After the first petition was rejected, Mr. Jackson and his supporters were led to believe they could simply submit a corrected version based on advice from Kirk Kowieski, a Vice President at the HOA’s management company, First Service Residential (FSI).

In a July 19, 2022 email, Kowieski seemed to give them a green light:

The group submitting the recall petition can submit a “new” (amended) petition that has the same names, addresses and signatures as the original as well as any additional signees. Because the first/original petition was “officially” submitted and became a record of the Association, the Association had to accept it and consider it as presented.

This advice, while seemingly authoritative, offered false hope and had no legal standing. Tellingly, while the judge noted the manager’s email in the factual summary of the case, it was given zero weight in the legal analysis. The advice wasn’t just wrong; in the final decision, it was legally nonexistent.

Takeaway 3: Passion and Signatures Don’t Beat Procedure

The recall effort was not born from minor disagreements; it was fueled by serious grievances that resonated deeply within the community. In his testimony, Keith Jackson outlined a compelling case against the board:

• A severe lack of transparency and accountability.

• The community’s reserve fund plummeting from $3.4 million to under $1 million in just one year.

• Cutting off the community’s biggest source of revenue without any member input.

• Creating a “toxic workplace” that led to the resignation of the community manager and other key employees.

These concerns prompted over 250 homeowners to sign the petition in just 10 days. Yet, the merits of their case were never heard. From the very first moments of the hearing, the Administrative Law Judge made the narrow scope of the proceeding clear, even stopping Mr. Jackson’s opening statement to clarify, “The only authority I have is to determine whether or not the statute was interpreted correctly.” The legal system, in this administrative context, was procedurally deaf to their valid concerns, illustrating a stark reminder that passion and popular support are secondary to the cold, hard rules of procedure.

Conclusion: A Cautionary Tale in Black and White

In the highly regulated world of HOA governance, understanding and adhering to the exact letter of the law is non-negotiable. Keith Jackson’s story is a powerful cautionary tale of how a community movement can be undone by a simple, irreversible mistake. A friend turning in a petition before it was ready wasn’t a minor stumble to be corrected—it was the single action that sealed the fate of the entire campaign.

This case forces us to confront the purpose of such a strict rule. Proponents argue this “one-shot” provision prevents boards from being paralyzed by serial, frivolous recall attempts, ensuring stable governance. Critics, however, contend that its unforgiving nature creates a procedural minefield that disempowers homeowners and shields inept or malicious boards from accountability. This leaves us with a crucial question: Does a strict, one-shot rule for recalls truly protect boards from harassment, or does it create an insurmountable barrier for homeowners seeking accountability?

Case Participants

Petitioner Side

  • Keith Jackson (petitioner)
    Self-represented
  • Andy Ball (member)
    Val Vista Lakes Community Association
    Submitted the initial incomplete petition

Respondent Side

  • Eric Cook (HOA attorney)
    Lewis Brisbois Bisgaad & Smith LLP
    Represented Val Vista Lakes Community Association
  • Doug Keats (board member)
    Val Vista Lakes Community Association
    Treasurer; Board member being recalled; Witness
  • K. Adams (board member)
    Val Vista Lakes Community Association
    Secretary; Witness; Assigned to work with HOA attorney
  • Bill Suttell (board member)
    Val Vista Lakes Community Association
    President; Board member being recalled
  • Sharon Maiden (board member)
    Val Vista Lakes Community Association
    Vice President; Board member being recalled
  • Steve Nielson (board member)
    Val Vista Lakes Community Association
    General Board Member; Board member being recalled
  • Kirk Kowieski (property manager)
    First Service Residential (FSR)
    Vice President/Interim Manager of the HOA management company
  • Melissa Scoville (board member)
    Val Vista Lakes Community Association
    Board member mentioned in context of Rob Act's petition
  • Joanie U (board member)
    Val Vista Lakes Community Association
  • Lenny KNik (HOA attorney)
    Consulted by Kirk regarding the petition process
  • Andreas Vas (HOA attorney)
    Consulted by Kirk regarding the petition process

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Transmitted decision electronically

Other Participants

  • Rob Act (member)
    Submitted a separate incomplete petition
  • Stephanie (intern manager)
    FSR
    Works with Kirk

M&T Properties LLC v. Kivas Uno Homeowners’ Association

Posted on by

Case Summary

Case ID 22F-H2222060-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-09-06
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner prevailed on the singular issue raised: Respondent (HOA) was found to be in violation of Section 6.7 of the CC&Rs for failing to retain a duly licensed property management agent at the time the petition was filed. The HOA was ordered to reimburse the $500 filing fee and comply with the CC&Rs moving forward. No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner M&T Properties LLC Counsel Lucas Thomas, Owner
Respondent Kivas Uno Homeowners’ Association Counsel David Rivandi, Director

Alleged Violations

Section 6.7 of the First Amendment to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions for Kivas Uno Condominium

Outcome Summary

The Petitioner prevailed on the singular issue raised: Respondent (HOA) was found to be in violation of Section 6.7 of the CC&Rs for failing to retain a duly licensed property management agent at the time the petition was filed. The HOA was ordered to reimburse the $500 filing fee and comply with the CC&Rs moving forward. No civil penalty was imposed.

Key Issues & Findings

Professional Management

Respondent (HOA) acknowledged that as of the date the Petition was filed (June 6, 2022), it did not retain or maintain a Managing Agent who is duly licensed by the State of Arizona as a property manager, which violated Section 6.7 of the CC&Rs.

Orders: Respondent was ordered to reimburse Petitioner the $500.00 filing fee and was directed to comply with the requirements of Section 6.7 of the CC&Rs going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.A.C. R2-19-119

Analytics Highlights

Topics: CCNR violation, Property Management, Filing Fee Refund, No Civil Penalty
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222060-REL Decision – 997254.pdf

Uploaded 2026-04-25T10:12:09 (87.5 KB)

22F-H2222060-REL Decision – 997254.pdf

Uploaded 2026-01-23T17:48:47 (87.5 KB)

This summary outlines the proceedings, key arguments, and final decision in the matter of *M&T Properties LLC vs Kivas Uno Homeowners’ Association*, Docket No. 22F-H2222060-REL.

Key Facts and Parties

The hearing took place on August 17, 2022, before Administrative Law Judge Tammy L. Eigenheer (Idier). Petitioner, M&T Properties LLC, filed a petition with the Arizona Department of Real Estate (Department) on or about June 6, 2022, alleging that the Respondent, Kivas Uno Homeowners’ Association (a condominium owners’ association in Phoenix, Arizona), was in violation of its governing documents.

Main Legal Issue

The singular issue determined at the hearing was whether the Respondent was in violation of Section 6.7 of the 2003 amendments to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions (CC&Rs). Section 6.7, titled "Professional Management," mandates that the Board "shall at all times retain and maintain a 'Managing Agent,' who is duly licensed by the State of Arizona as a property manager". Petitioner alleged that the HOA was required to have a professional management company but did not.

Hearing Proceedings and Key Arguments

At the outset of the hearing, the Respondent, represented by David Rivandi, Director, acknowledged that as of the date the petition was filed (June 6, 2022), they did not have a contract with a professional management company. By this admission, the Respondent acknowledged they were in violation of the CC&Rs at that specific time.

The Respondent attempted to assert that the Board did not know they were required to have a professional management company and noted that they had since contracted with one. However, the Administrative Law Judge (ALJ) strictly limited the scope of the hearing, stating that the singular issue raised in the petition had been addressed by the admission of violation. The ALJ specifically noted that the subsequent hiring of a management company did not negate the admitted violation present at the time the petition was filed. Attempts by the parties to raise and discuss numerous unrelated issues were disregarded.

Outcome and Final Decision

Based on the Respondent's admission that it failed to retain and maintain a licensed Managing Agent as required by Section 6.7 of the CC&Rs, the ALJ issued a finding against the Respondent.

The Administrative Law Judge's Order, dated September 6, 2022, provided the following binding conclusions:

  1. The Petitioner’s petition was affirmed.
  2. The Respondent was ordered to reimburse the Petitioner the $500.00 filing fee for the issue on which they prevailed.
  3. The Respondent was directed to comply with the requirements of Section 6.7 of the CC&Rs going forward.
  4. The ALJ found no civil penalty was appropriate in this matter.

Questions

Question

If my HOA fixes a violation after I file a formal complaint, do I still win the case?

Short Answer

Yes. If the violation existed at the time the petition was filed, the homeowner can still prevail.

Detailed Answer

Even if an HOA corrects the issue before the hearing date, the Administrative Law Judge (ALJ) looks at whether the violation existed at the time the legal action commenced. The homeowner is entitled to a finding in their favor and reimbursement of fees if the violation was active when filed.

Alj Quote

Respondent is asserting that they have since hired a management company. That's great. There's still a admitted violation at the time of the petition which results in the finding against respondent and the requirement to repay the filing fee.

Legal Basis

Admission of violation at time of filing

Topic Tags

  • procedure
  • mootness
  • remedies

Question

Can I bring up new issues during the hearing that I forgot to include in my written petition?

Short Answer

No. The hearing is strictly limited to the issues specifically raised in the original petition.

Detailed Answer

The ALJ will typically refuse to hear arguments regarding issues that were not included in the initial filing. If a homeowner has additional complaints, they must file a separate petition to address them.

Alj Quote

The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition. … In the event there is a subsequent petition raising other issues that will be dealt dealt with in a separate proceeding.

Legal Basis

Scope of hearing

Topic Tags

  • procedure
  • due process
  • hearing scope

Question

Is the HOA Board allowed to use 'we didn't know' as a defense for violating the CC&Rs?

Short Answer

No. Ignorance of the CC&R requirements is not a valid defense against a violation finding.

Detailed Answer

In this case, the Board asserted they were unaware of the requirement to hire a professional manager. The ALJ noted this assertion but still found them in violation of the CC&Rs.

Alj Quote

Mr. Rivandi asserted the Board did not know they were required to have a professional management company… The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.

Legal Basis

Strict liability for CC&R compliance

Topic Tags

  • board defenses
  • compliance
  • fiduciary duty

Question

Can I get my $500 filing fee back if the HOA admits they were wrong?

Short Answer

Yes. If the homeowner prevails on the issue, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

When a violation is found (or admitted to) regarding the issue raised in the petition, the standard remedy includes ordering the Respondent (HOA) to reimburse the Petitioner for the cost of filing the action.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner its $500.00 filing fee for the issue on which they prevailed.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Will the HOA always be fined a penalty if they are found guilty of a violation?

Short Answer

No. The ALJ has the discretion to decide whether a civil penalty is appropriate based on the facts.

Detailed Answer

Even if a violation is proven, the judge may choose not to impose a civil penalty (fine) against the HOA, potentially if the HOA has already taken steps to correct the issue.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Judicial discretion on penalties

Topic Tags

  • penalties
  • fines
  • enforcement

Question

What level of proof is required for a homeowner to win an HOA dispute?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must show that their claim is 'more probable than not' based on the evidence provided. This is the standard burden of proof in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
22F-H2222060-REL
Case Title
M&T Properties LLC vs Kivas Uno Homeowners’ Association
Decision Date
2022-09-06
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA fixes a violation after I file a formal complaint, do I still win the case?

Short Answer

Yes. If the violation existed at the time the petition was filed, the homeowner can still prevail.

Detailed Answer

Even if an HOA corrects the issue before the hearing date, the Administrative Law Judge (ALJ) looks at whether the violation existed at the time the legal action commenced. The homeowner is entitled to a finding in their favor and reimbursement of fees if the violation was active when filed.

Alj Quote

Respondent is asserting that they have since hired a management company. That's great. There's still a admitted violation at the time of the petition which results in the finding against respondent and the requirement to repay the filing fee.

Legal Basis

Admission of violation at time of filing

Topic Tags

  • procedure
  • mootness
  • remedies

Question

Can I bring up new issues during the hearing that I forgot to include in my written petition?

Short Answer

No. The hearing is strictly limited to the issues specifically raised in the original petition.

Detailed Answer

The ALJ will typically refuse to hear arguments regarding issues that were not included in the initial filing. If a homeowner has additional complaints, they must file a separate petition to address them.

Alj Quote

The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition. … In the event there is a subsequent petition raising other issues that will be dealt dealt with in a separate proceeding.

Legal Basis

Scope of hearing

Topic Tags

  • procedure
  • due process
  • hearing scope

Question

Is the HOA Board allowed to use 'we didn't know' as a defense for violating the CC&Rs?

Short Answer

No. Ignorance of the CC&R requirements is not a valid defense against a violation finding.

Detailed Answer

In this case, the Board asserted they were unaware of the requirement to hire a professional manager. The ALJ noted this assertion but still found them in violation of the CC&Rs.

Alj Quote

Mr. Rivandi asserted the Board did not know they were required to have a professional management company… The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.

Legal Basis

Strict liability for CC&R compliance

Topic Tags

  • board defenses
  • compliance
  • fiduciary duty

Question

Can I get my $500 filing fee back if the HOA admits they were wrong?

Short Answer

Yes. If the homeowner prevails on the issue, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

When a violation is found (or admitted to) regarding the issue raised in the petition, the standard remedy includes ordering the Respondent (HOA) to reimburse the Petitioner for the cost of filing the action.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner its $500.00 filing fee for the issue on which they prevailed.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Will the HOA always be fined a penalty if they are found guilty of a violation?

Short Answer

No. The ALJ has the discretion to decide whether a civil penalty is appropriate based on the facts.

Detailed Answer

Even if a violation is proven, the judge may choose not to impose a civil penalty (fine) against the HOA, potentially if the HOA has already taken steps to correct the issue.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Judicial discretion on penalties

Topic Tags

  • penalties
  • fines
  • enforcement

Question

What level of proof is required for a homeowner to win an HOA dispute?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must show that their claim is 'more probable than not' based on the evidence provided. This is the standard burden of proof in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
22F-H2222060-REL
Case Title
M&T Properties LLC vs Kivas Uno Homeowners’ Association
Decision Date
2022-09-06
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lucas Thomas (Petitioner Representative)
    M&T Properties LLC
    Owner, appeared on behalf of Petitioner.

Respondent Side

  • David Rivandi (Board Member/Respondent Representative)
    Kivas Uno Homeowners’ Association
    Director, appeared on behalf of Respondent. Confirmed being on the board of directors.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Idier, Administrative Law Judge.
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Transmitted the order.

Terry Marvin & Lori J Lefferts v. The Stone Canyon Community

Posted on by

Case Summary

Case ID 22F-H2221018-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-05
Administrative Law Judge Kay A. Abramsohn
Outcome The Petition alleging that the Stone Canyon Community Association violated its Design Guidelines by granting a variance for secondary improvements within the side-yard setback to Lot 19 owners was dismissed. The ALJ found that the DRC exercised reasonable discretion in granting a deviation (variance) under Guidelines Section 5, Item 12, and the Petitioners failed to meet their burden of proof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Terry Marvin & Lori J. Lefferts Counsel —
Respondent The Stone Canyon Community Association, Inc. Counsel Nicholas C.S. Nogami

Alleged Violations

CC&R § 11.3; Guidelines § 1, Items 1 & 32; Guidelines § 5, Item 12

Outcome Summary

The Petition alleging that the Stone Canyon Community Association violated its Design Guidelines by granting a variance for secondary improvements within the side-yard setback to Lot 19 owners was dismissed. The ALJ found that the DRC exercised reasonable discretion in granting a deviation (variance) under Guidelines Section 5, Item 12, and the Petitioners failed to meet their burden of proof.

Why this result: The Administrative Law Judge determined that the Design Review Committee acted reasonably within its authority to grant a deviation (variance) to the Guidelines to allow the proposed secondary improvements (grading, driveway, enclosure) within the 15’ side-yard setback in extenuating circumstances, consistent with the requirements outlined in Guideline Section 5, Item 12.

Key Issues & Findings

Alleged violation by DRC when granting a variance for side-yard setback requirements for secondary improvements.

Petitioners (Lot 20 owners) alleged the DRC violated guidelines by granting a variance to Lot 19 owners for placing secondary improvements (driveway, grading, site walls, enclosure) within the 15-foot side-yard setback. Petitioners sought rescission of the variance, arguing the DRC failed to establish an unreasonable hardship or burden as required by Guideline Section 5, Item 12, thereby acting unreasonably and causing diminution in Lot 20 value.

Orders: Petitioners' Petition is dismissed. Petitioners bear their $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Guidelines Section 1, Item 1
  • Guidelines Section 1, Item 32
  • Guidelines Section 5, Item 12
  • A.A.C. R2-19-119
  • A.R.S. Title 33, Chapter 16

Analytics Highlights

Topics: HOA dispute, Design Review Committee, variance, setback, secondary improvements, reasonable discretion
Additional Citations:

  • CC&R Section 11.3
  • Guidelines Section 1, Item 1
  • Guidelines Section 1, Item 32
  • Guidelines Section 5, Item 12
  • A.R.S. Title 33, Chapter 16
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2221018-REL Decision – 940674.pdf

Uploaded 2026-04-24T11:40:53 (56.7 KB)

22F-H2221018-REL Decision – 953784.pdf

Uploaded 2026-04-24T11:40:58 (64.2 KB)

22F-H2221018-REL Decision – 954492.pdf

Uploaded 2026-04-24T11:41:04 (46.5 KB)

22F-H2221018-REL Decision – 958478.pdf

Uploaded 2026-04-24T11:41:09 (48.5 KB)

22F-H2221018-REL Decision – 958503.pdf

Uploaded 2026-04-24T11:41:18 (7.4 KB)

22F-H2221018-REL Decision – 990387.pdf

Uploaded 2026-04-24T11:41:21 (167.8 KB)

22F-H2221018-REL Decision – 940674.pdf

Uploaded 2026-01-23T17:42:06 (56.7 KB)

22F-H2221018-REL Decision – 953784.pdf

Uploaded 2026-01-23T17:42:09 (64.2 KB)

22F-H2221018-REL Decision – 954492.pdf

Uploaded 2026-01-23T17:42:13 (46.5 KB)

22F-H2221018-REL Decision – 958478.pdf

Uploaded 2026-01-23T17:42:16 (48.5 KB)

22F-H2221018-REL Decision – 958503.pdf

Uploaded 2026-01-23T17:42:19 (7.4 KB)

22F-H2221018-REL Decision – 990387.pdf

Uploaded 2026-01-23T17:42:22 (167.8 KB)

The administrative hearing concerned a dispute between Terry Marvin and Lori J. Lefferts (Petitioners, owners of Lot 20) and The Stone Canyon Community Association, Inc. (Respondent/Association) regarding the approval of construction plans for Lot 19.

Key Facts and Issues

On October 11, 2021, Petitioners filed a Petition alleging that the Association’s Design Review Committee (DRC) violated adopted Development Design Guidelines (Guidelines). The core allegation was that the DRC improperly granted a variance to Lot 19 Owners regarding side-yard setback requirements. The approval allowed secondary improvements—specifically a driveway extension, grading, site walls, and mechanical enclosure—to encroach into the required 15-foot side setback area.

The issue before the Administrative Law Judge (ALJ) was whether the Association, through the DRC, violated Guidelines Section 1 (Items 1 and 32) and Section 5 (Item 12) when granting this variance.

Key Arguments

  1. Petitioners' Position: Petitioners argued that documentary evidence, including DRC minutes from June 29, 2021, and subsequent legal correspondence, proved the DRC granted a variance. Petitioners asserted this variance was invalid because the DRC members failed to make a required finding of "unreasonable hardship or burden" for the Lot 19 Owners, as mandated by Guideline Section 5, Item 12. Petitioners contended the DRC acted unreasonably, resulting in a diminution of Lot 20’s property value and aesthetic detriment.
  2. Respondent's Position: The Association admitted that the term "variance" was used but argued this was a semantic error or "misnomer". The Association maintained that no variance was necessary or granted. Instead, the approval was properly granted as a "modification" for secondary improvements (grading, driveways, site walls, etc.) under Guideline Section 1, Item 32, which allows such approvals on a "case-by-case basis". The Association's Consulting Architect testified that the modification provisions were added to accommodate development constraints on unique lots, and the DRC meticulously reviewed the Lot 19 merits.

Legal Points Focused On

The hearing focused heavily on the distinction between a variance (which requires a finding of unreasonable hardship/burden per Guidelines Section 5, Item 12) and a modification (which is considered on a case-by-case basis for secondary improvements per Guidelines Section 1, Item 32). DRC members testified that they did not believe they were granting a variance. Petitioners argued that approving encroachments without applying clear standards, whether classified as a variance or modification, was an unreasonable breach of duty.

Outcome and Decision

The ALJ found that "semantics are at play" in the matter. The ALJ ultimately concluded that the hearing record demonstrated the DRC "exercised reasonable discretion" under its authority to grant a Section 5, Item 12 deviation, characterized by the ALJ as "i.e., a variance," to allow the proposed secondary improvements within the setback. The ALJ found that Petitioners did not establish, by a preponderance of the evidence, that the Association had violated the alleged Guideline provisions. Therefore, the Petition was dismissed.

Questions

Question

What is the burden of proof for a homeowner challenging an HOA's architectural decision?

Short Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated its governing documents.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the petitioner (homeowner) bears the burden of proof. They must demonstrate that it is more probable than not that the Association or its Committee violated specific provisions of the governing documents (such as Design Guidelines).

Alj Quote

Petitioners bear the burden of proving by a preponderance of the evidence that, as alleged, Association through actions of Committee had violated Guidelines Section 1, Items 1 and 32 requirements and Section 5, Item 12 requirements when Committee granted a variance…1

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

It means evidence that is more convincing than the opposing evidence, showing the fact is 'more probable than not.'

Detailed Answer

The ALJ defines this legal standard as evidence that carries greater weight than the evidence offered in opposition. It does not require absolute certainty, but rather that the fact sought to be proved is more probable than not.

Alj Quote

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”2

Legal Basis

Black's Law Dictionary (6th ed. 1990)

Topic Tags

  • legal definitions
  • standards of evidence

Question

Can my HOA grant a neighbor a variance for construction setbacks?

Short Answer

Yes, if the governing documents grant the Design Review Committee discretion to deviate from requirements in extenuating circumstances.

Detailed Answer

If the Design Guidelines provide the Committee with discretion to deviate from requirements when following them would create an unreasonable hardship or burden, the HOA can validly grant a variance. The ALJ looks for whether the Committee exercised 'reasonable discretion' under this authority.

Alj Quote

The Administrative Law Judge concludes that the hearing record demonstrates that Committee exercised reasonable discretion under its authority to grant… a Section 5, Item 12 deviation, i.e., a variance… to allow the proposed/approved secondary improvements to be placed within the 15’ side-yard setback.3

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

Can the HOA treat driveways and landscaping differently than main house structures regarding setbacks?

Short Answer

Yes, governing documents may allow 'modifications' for secondary improvements even if structures have strict setbacks.

Detailed Answer

Governing documents may distinguish between 'building structures' (which must strictly comply with setbacks) and 'secondary improvements' like driveways, grading, or site walls. The documents may allow modifications to setbacks for these secondary items on a case-by-case basis.

Alj Quote

All building Structures shall comply with the above outlined setback distances. Modifications to the above outlined setback distances will be considered on a case-by-case basis for secondary improvements such as grading, landscaping, driveways, site walls, etc.4

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

What qualifies as an 'unreasonable hardship' that justifies a variance?

Short Answer

Practical necessities, such as needing access to a garage that otherwise complies with setbacks, can be considered an extenuating circumstance.

Detailed Answer

In this case, the Committee determined that needing driveway access to a new garage (which itself was built within the allowable building envelope) constituted an 'extenuating circumstance.' This practical necessity justified granting a variance for the driveway and grading to encroach into the setback area.

Alj Quote

The hearing record demonstrates that… Association supported the Committee’s determination that needing access to the new RV garage which itself was being built within the building envelope… met the criteria of “extenuating” circumstances… for purposes of granting a “variance” for the new driveway to be placed and necessary grading to occur within the 15’ side-yard setback.5

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

If I lose my case against the HOA, do I get my filing fee back?

Short Answer

No, if the petition is dismissed, the homeowner is typically ordered to bear the cost of the filing fee.

Detailed Answer

The ALJ has the authority to order who pays the costs. In this decision, after dismissing the petition because the homeowners failed to prove a violation, the ALJ ordered the homeowners to pay their own filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioners bears their $500.00 filing fee.6

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
22F-H2221018-REL
Case Title
Terry Marvin & Lori J. Lefferts v. The Stone Canyon Community Association, Inc.
Decision Date
2022-08-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner challenging an HOA's architectural decision?

Short Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated its governing documents.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the petitioner (homeowner) bears the burden of proof. They must demonstrate that it is more probable than not that the Association or its Committee violated specific provisions of the governing documents (such as Design Guidelines).

Alj Quote

Petitioners bear the burden of proving by a preponderance of the evidence that, as alleged, Association through actions of Committee had violated Guidelines Section 1, Items 1 and 32 requirements and Section 5, Item 12 requirements when Committee granted a variance…1

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

It means evidence that is more convincing than the opposing evidence, showing the fact is 'more probable than not.'

Detailed Answer

The ALJ defines this legal standard as evidence that carries greater weight than the evidence offered in opposition. It does not require absolute certainty, but rather that the fact sought to be proved is more probable than not.

Alj Quote

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”2

Legal Basis

Black's Law Dictionary (6th ed. 1990)

Topic Tags

  • legal definitions
  • standards of evidence

Question

Can my HOA grant a neighbor a variance for construction setbacks?

Short Answer

Yes, if the governing documents grant the Design Review Committee discretion to deviate from requirements in extenuating circumstances.

Detailed Answer

If the Design Guidelines provide the Committee with discretion to deviate from requirements when following them would create an unreasonable hardship or burden, the HOA can validly grant a variance. The ALJ looks for whether the Committee exercised 'reasonable discretion' under this authority.

Alj Quote

The Administrative Law Judge concludes that the hearing record demonstrates that Committee exercised reasonable discretion under its authority to grant… a Section 5, Item 12 deviation, i.e., a variance… to allow the proposed/approved secondary improvements to be placed within the 15’ side-yard setback.3

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

Can the HOA treat driveways and landscaping differently than main house structures regarding setbacks?

Short Answer

Yes, governing documents may allow 'modifications' for secondary improvements even if structures have strict setbacks.

Detailed Answer

Governing documents may distinguish between 'building structures' (which must strictly comply with setbacks) and 'secondary improvements' like driveways, grading, or site walls. The documents may allow modifications to setbacks for these secondary items on a case-by-case basis.

Alj Quote

All building Structures shall comply with the above outlined setback distances. Modifications to the above outlined setback distances will be considered on a case-by-case basis for secondary improvements such as grading, landscaping, driveways, site walls, etc.4

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

What qualifies as an 'unreasonable hardship' that justifies a variance?

Short Answer

Practical necessities, such as needing access to a garage that otherwise complies with setbacks, can be considered an extenuating circumstance.

Detailed Answer

In this case, the Committee determined that needing driveway access to a new garage (which itself was built within the allowable building envelope) constituted an 'extenuating circumstance.' This practical necessity justified granting a variance for the driveway and grading to encroach into the setback area.

Alj Quote

The hearing record demonstrates that… Association supported the Committee’s determination that needing access to the new RV garage which itself was being built within the building envelope… met the criteria of “extenuating” circumstances… for purposes of granting a “variance” for the new driveway to be placed and necessary grading to occur within the 15’ side-yard setback.5

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

If I lose my case against the HOA, do I get my filing fee back?

Short Answer

No, if the petition is dismissed, the homeowner is typically ordered to bear the cost of the filing fee.

Detailed Answer

The ALJ has the authority to order who pays the costs. In this decision, after dismissing the petition because the homeowners failed to prove a violation, the ALJ ordered the homeowners to pay their own filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioners bears their $500.00 filing fee.6

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
22F-H2221018-REL
Case Title
Terry Marvin & Lori J. Lefferts v. The Stone Canyon Community Association, Inc.
Decision Date
2022-08-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Terry Marvin (petitioner)
  • Lori J. Lefferts (petitioner)
    Also referred to as Lori Lebert/Leopards

Respondent Side

  • Nicholas C.S. Nogami (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
  • Parker C. Fox (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
  • Sami M. Farhat (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
  • Mark Saul (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
    Partner of Mr. Nogami and counsel to the HOA
  • Jerry Young (Consulting Architect)
    Association representative and Consulting Architect for the Design Review Committee
  • Theodore Riggs (DRC member)
    Also referred to as Ted Riggs; witness called by Petitioners
  • Richard Reese (DRC member)
    Also referred to as Dick Reif/Rice/Reef; former DRC member; witness called by Petitioners
  • Kevin Given (DRC member)
    Head of the DRC; voted against Lot 19 approval
  • Steve Hall (DRC member)
    Absent from July 27, 2021 Committee meeting
  • Andrew Deni (Architect)
    Architect for Lot 19 Owners (also referred to as Andy Deni/Denah/Dencki)
  • Martin Coe (Lot owner)
    Lot 19 Owner
  • Lydia Roos (Lot owner)
    Lot 19 Owner
  • Tim Stampson (General Contractor)
    General Contractor for Lot 19 Project (also referred to as Ken Samson)
  • Divine Homes (observer)
    Summer associate observing proceedings with HOA attorneys
  • Edward GA (observer)
    Summer associate observing proceedings with HOA attorneys

Neutral Parties

  • Kay Abramsohn (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • D. Gardner (ADRE staff)
    Arizona Department of Real Estate
  • d. jones (ADRE staff)
    Arizona Department of Real Estate
  • v. nunez (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    Signed transmittal
  • Miranda Alvarez (Legal Secretary)
    Signed transmittal (also referred to as M Alvarez)
  • Gina Marcus (Design Review Coordinator)
    Association staff/minutes taker
  • Cindy Nichols (unknown)
    Possible minutes taker

Other Participants

  • Nicholas Dana (Lot owner)
    Owner of Lot 24 and resident of Lot 25
  • Steven Schmidt (observer)
    Petitioner in a different matter, observing the hearing

Katherine Belinsky v. Del Cerro Condos

Posted on by

Case Summary

Case ID 22F-H2222046-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-14
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, concluding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A), finding that the HOA and its property managers had made records reasonably available for examination.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Katherine Belinsky Counsel —
Respondent Del Cerro Condos Counsel —

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A), finding that the HOA and its property managers had made records reasonably available for examination.

Why this result: Petitioner failed to meet the burden of proof required by A.A.C. R2-19-119. The evidence showed Respondent responded timely to requests, provided some documents, and offered Petitioner appointments to review other sensitive or older records in the office, which she failed to schedule.

Key Issues & Findings

Failure to provide books, records and accounts

Petitioner alleged Respondent failed to provide required HOA records, including bank statements, invoices, and contracts, following requests made primarily in March 2022, thereby violating statute A.R.S. § 33-1805(A).

Orders: Petitioner's petition denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA Records Access, Statutory Violation, Burden of Proof, Special Assessment Dispute
Additional Citations:

  • A.R.S. § 33-1805
  • A.A.C. R2-19-119
  • State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
  • Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Video Overview

Audio Overview

Decision Documents

22F-H2222046-REL Decision – 971256.pdf

Uploaded 2026-04-26T09:58:54 (46.4 KB)

22F-H2222046-REL Decision – 983785.pdf

Uploaded 2026-04-26T09:58:58 (114.6 KB)

22F-H2222046-REL Decision – 971256.pdf

Uploaded 2026-01-23T17:47:58 (46.4 KB)

22F-H2222046-REL Decision – 983785.pdf

Uploaded 2026-01-23T17:48:03 (114.6 KB)

This summary addresses the legal case hearing concerning the Petitioner, Katherine Belinsky, versus the Respondent, Del Cerro Condos, Case No. 22F-H2222046-REL, heard on July 1, 2022, before Administrative Law Judge Adam D. Stone.

Key Facts and Main Issue

The dispute centered on the Petitioner's claim that the Del Cerro Condos Homeowners Association (HOA), a 14-unit association, failed to provide requested books, records, and accounts, constituting a violation of A.R.S. § 33-1805(A). This petition followed a period of instability within the HOA, which was described as neglected and dating back to 1969, with only $1,000.00 in the reserve account. The conflict intensified after the Board issued a $5,000.00 special assessment per unit in January 2022 to fund necessary maintenance, primarily walkway repairs. The Petitioner testified that she had been requesting documents for three to four years, specifically mentioning invoices, contracts, bank statements, and corporation records, and claimed any disclosures were "doctored".

Hearing Proceedings and Key Arguments

  1. Petitioner's Position: Katherine Belinsky (Petitioner) argued that she had received "not one thing" regarding contracts, bids, invoices, or bank statements, and was unaware of how HOA money was being spent. She cited Arizona law, including HB2158 and case law (e.g., *Callaway*), to assert that the special assessment and changes to governing documents were illegal due to lack of transparency and proper member voting.
  1. Respondent's Defense: Alessandra Wisniewski (Vice President) and Amanda Butcher (President) maintained that they, along with their property managers (PMI, and later Community Financials), were prompt in responding to Petitioner's written requests. They testified that documents such as financial statements for recent months (starting September 2021) and governing documents (CCNRs/Bylaws) were sent to the Petitioner via email. For other sensitive or older records (such as receipts, vendor bids, and individual member ledgers), Ms. Wisniewski stated that Petitioner was repeatedly instructed—in writing—to schedule an appointment to review these documents at the management office, which the Petitioner failed to do. The Board asserted they made accommodations for the Petitioner regarding her HOA payments and confirmed they were protecting sensitive information.

Legal Points and Outcome

The Administrative Law Judge (ALJ) held that the Petitioner bore the burden of proving a violation of A.R.S. § 33-1805 by a preponderance of the evidence. A.R.S. § 33-1805 mandates that records "shall be made reasonably available for examination".

The ALJ's decision found that the Petitioner failed to establish that she was denied access to the financial records. The evidence demonstrated that the Board and property manager provided documents timely and offered the opportunity for the Petitioner to make an appointment to review other requested records, an opportunity she did not utilize. The statute does not grant a unit owner the right to peruse all documents at will, as some may properly be withheld.

Final Decision: The Petitioner’s petition was denied.

Questions

Question

Who is responsible for proving that the HOA violated the law during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, it is up to the homeowner filing the complaint to prove that the Association violated the statute. The HOA does not initially have to prove its innocence; the homeowner must present evidence that carries more weight.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The homeowner must provide evidence that is more convincing than the evidence offered by the HOA. It must show that the alleged violation is 'more probable than not' to have occurred.

Alj Quote

A preponderance of the evidence is '[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.'

Legal Basis

Black's Law Dictionary (cited in decision)

Topic Tags

  • evidence
  • legal standard

Question

Does a homeowner have the right to browse through every single document the HOA possesses?

Short Answer

No, the right to inspect records is not absolute or 'at will'.

Detailed Answer

While statutes require records to be reasonably available, this does not grant homeowners the right to peruse every document at will. The ALJ noted that certain documents may properly be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • privacy
  • limitations

Question

If I request records, does the HOA have to mail them to me, or can they require me to view them in person?

Short Answer

The HOA complies by making records available for examination, often by appointment.

Detailed Answer

The HOA meets its statutory obligation if it makes records reasonably available for examination. In this case, offering an appointment for the homeowner to visit the office and review the documents was considered sufficient compliance, even if the homeowner refused to attend.

Alj Quote

Further, the preponderance of the evidence demonstrates that Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • compliance
  • in-person review

Question

How quickly must the HOA respond to a request to examine records?

Short Answer

Within ten business days.

Detailed Answer

Under Arizona law, an association has ten business days to fulfill a request for examination of records or to provide copies if purchased.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • deadlines
  • statutory requirements

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No fee is allowed for the review process itself.

Detailed Answer

The association is prohibited from charging a member for making material available for review. However, they may charge a fee specifically for making copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • records access

Question

What is the maximum amount an HOA can charge for copies of records?

Short Answer

Fifteen cents per page.

Detailed Answer

If a homeowner requests to purchase copies of the records, the association is limited by statute to charging no more than fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • copies

Question

Can I dispute an HOA violation if I simply refuse to cooperate with their attempts to provide records?

Short Answer

Likely not; failure to utilize offered opportunities undermines the claim.

Detailed Answer

If the HOA offers opportunities to review records (such as setting an appointment) and the homeowner fails to do so, the homeowner may fail to prove that they were denied access.

Alj Quote

Petitioner failed to establish that she was denied access to the financial records. … Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

Determined by ALJ Findings

Topic Tags

  • dispute resolution
  • homeowner responsibility

Case

Docket No
22F-H2222046-REL
Case Title
Katherine Belinsky vs Del Cerro Condos
Decision Date
2022-07-14
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that the HOA violated the law during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, it is up to the homeowner filing the complaint to prove that the Association violated the statute. The HOA does not initially have to prove its innocence; the homeowner must present evidence that carries more weight.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The homeowner must provide evidence that is more convincing than the evidence offered by the HOA. It must show that the alleged violation is 'more probable than not' to have occurred.

Alj Quote

A preponderance of the evidence is '[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.'

Legal Basis

Black's Law Dictionary (cited in decision)

Topic Tags

  • evidence
  • legal standard

Question

Does a homeowner have the right to browse through every single document the HOA possesses?

Short Answer

No, the right to inspect records is not absolute or 'at will'.

Detailed Answer

While statutes require records to be reasonably available, this does not grant homeowners the right to peruse every document at will. The ALJ noted that certain documents may properly be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • privacy
  • limitations

Question

If I request records, does the HOA have to mail them to me, or can they require me to view them in person?

Short Answer

The HOA complies by making records available for examination, often by appointment.

Detailed Answer

The HOA meets its statutory obligation if it makes records reasonably available for examination. In this case, offering an appointment for the homeowner to visit the office and review the documents was considered sufficient compliance, even if the homeowner refused to attend.

Alj Quote

Further, the preponderance of the evidence demonstrates that Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • compliance
  • in-person review

Question

How quickly must the HOA respond to a request to examine records?

Short Answer

Within ten business days.

Detailed Answer

Under Arizona law, an association has ten business days to fulfill a request for examination of records or to provide copies if purchased.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • deadlines
  • statutory requirements

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No fee is allowed for the review process itself.

Detailed Answer

The association is prohibited from charging a member for making material available for review. However, they may charge a fee specifically for making copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • records access

Question

What is the maximum amount an HOA can charge for copies of records?

Short Answer

Fifteen cents per page.

Detailed Answer

If a homeowner requests to purchase copies of the records, the association is limited by statute to charging no more than fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • copies

Question

Can I dispute an HOA violation if I simply refuse to cooperate with their attempts to provide records?

Short Answer

Likely not; failure to utilize offered opportunities undermines the claim.

Detailed Answer

If the HOA offers opportunities to review records (such as setting an appointment) and the homeowner fails to do so, the homeowner may fail to prove that they were denied access.

Alj Quote

Petitioner failed to establish that she was denied access to the financial records. … Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

Determined by ALJ Findings

Topic Tags

  • dispute resolution
  • homeowner responsibility

Case

Docket No
22F-H2222046-REL
Case Title
Katherine Belinsky vs Del Cerro Condos
Decision Date
2022-07-14
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Katherine Belinsky (petitioner)
    Also referred to as Catherine Valinski, Bolinsky, or Katya/Katcha; unit owner.

Respondent Side

  • Alessandra Wisniewski (VP)
    Del Cerro Condos Board
    Also referred to as Alexandra; testified on behalf of Respondent.
  • Amanda Butcher (President)
    Del Cerro Condos Board
    Testified on behalf of Respondent.
  • Eddie B (property manager)
    PMI Lake Havasu
    President of PMI Lake Havasu; also referred to as Eddie Being.
  • Lisa Modler (property manager assistant)
    PMI Lake Havasu
    Also referred to as Lisa Miam; secretary assistance for PMI.
  • Brady Bowen (property manager)
    PMI Lake Havasu
    Business partner of Eddie B.
  • Fiser (maintenance supervisor)
    PMI Lake Havasu
    No first name provided.
  • Kathy Ein (property manager)
    Community Financials
    Manager for new management company.
  • Moses (board member)
    Del Cerro Condos Board
    Former Treasurer/Secretary on the board.

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (legal secretary)
    OAH
    Transmitted Decision electronically.
  • AHansen (ADRE staff)
    ADRE
    Recipient of official documents.
  • vnunez (ADRE staff)
    ADRE
    Recipient of official documents.
  • djones (ADRE staff)
    ADRE
    Recipient of official documents.
  • labril (ADRE staff)
    ADRE
    Recipient of official documents.

Other Participants

  • Eric Needles (former property manager)
    London Dairy
    Former property management/statutory agent.
  • Elizabeth (statutory agent)
    Former statutory agent; last name not provided.
  • Betty Sergeant (former property manager)
    Petitioner took her to court.
  • Todd Sullivan (association manager)
    Viking New Association
    New association manager effective June 1st.
  • c. serrano (unknown)
    Transmittal initial on Del Cerro Condo contact document.

Roberta J Stevenson-McDemott v. Four Palms Homeowners

Posted on by

Case Summary

Case ID 22F-H2222033-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-08
Administrative Law Judge Adam D. Stone
Outcome The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Roberta J Stevenson-McDermott Counsel —
Respondent Four Palms Homeowners Counsel Araceli Rodriguez

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.

Why this result: Petitioner failed to make a request for records in writing as required by A.R.S. § 33-1258.

Key Issues & Findings

Access to Association Financial and Other Records

Petitioner alleged the HOA violated A.R.S. § 33-1258 by denying her access and copies of various financial records dating back to 2016. The HOA argued they provided financial summaries and offered in-person review, noting Petitioner failed to make a proper written request.

Orders: Petition denied. Respondent is directed to comply with A.R.S. § 33-1258 going forward upon a proper written request from Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248
  • A.A.C. R2-19-119
  • A.R.S. § 32-2199 et seq.

Analytics Highlights

Topics: Financial Records, Written Request Requirement, HOA Governance, Condominium Act
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222033-REL Decision – 967350.pdf

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22F-H2222033-REL Decision – 982397.pdf

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22F-H2222033-REL Decision – 967350.pdf

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22F-H2222033-REL Decision – 982397.pdf

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

Key Facts and Main Issues

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

Hearing Proceedings and Key Arguments

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

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

Most Important Legal Points

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

Final Decision and Outcome

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

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

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Roberta J Stevenson-McDermott (petitioner)
  • Sean Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Lenor Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Philip Smith (owner/witness)
    Provided letter of support (not admitted as evidence)
  • c. serrano (clerical staff)
    Transmitted document for Petitioner

Respondent Side

  • Araceli Rodriguez (HOA attorney)
    Yuma Law Firm (inferred)
    Represented Four Palms Homeowners Association
  • Faye Burson (board member)
    Four Palms Homeowners HOA
    Vice President and witness (also listed as FA Buren)
  • Mario Salinas (board member)
    Four Palms Homeowners HOA
    Treasurer and witness (also listed as Mario Selenus)
  • Gilbert Sto (board member)
    Four Palms Homeowners HOA
    President
  • Lesie Blessing (board member)
    Four Palms Homeowners HOA
    Vice President (2016 board) and Secretary (current board)
  • Gail Hall (board member)
    Four Palms Homeowners HOA
    Fifth member
  • Linia Ohn (former board member)
    Four Palms Homeowners HOA
    Received payments in 2018 (also listed as Lenia own)
  • Scott Hoser (former board member)
    Four Palms Homeowners HOA
    Fifth member (2016 board)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (ADRE Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    ADRE
    Transmitted decision

Other Participants

  • Lisa Bon (former board member/owner)
    Secretary (2016 board); provided letter of support to Petitioner

Stephen and Elizabeth Tosh

Posted on by

Case Summary

Case ID 22F-H2222035-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-06-24
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Stephen and Elizabeth Tosh Counsel —
Respondent Cimmarron Superstition HOA Counsel Christopher Hanlon

Alleged Violations

A.A.C. R2-19-119

Outcome Summary

The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.

Why this result: Petitioners failed to appear at the hearing on June 24, 2022, and consequently did not present evidence to satisfy the burden of proof required under A.A.C. R2-19-119.

Key Issues & Findings

Petition Dismissal for Failure to Appear

Petition was dismissed because Petitioners failed to appear at the scheduled hearing and therefore presented no evidence to meet their burden of proof.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.A.C. R2-19-119
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: dismissal, failure to appear, burden of proof
Additional Citations:

  • A.A.C. R2-19-119
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222035-REL Decision – 968715.pdf

Uploaded 2026-04-24T11:48:17 (33.0 KB)

22F-H2222035-REL Decision – 969556.pdf

Uploaded 2026-04-24T11:48:21 (48.5 KB)

22F-H2222035-REL Decision – 979812.pdf

Uploaded 2026-04-24T11:48:25 (72.2 KB)

22F-H2222035-REL Decision – 989050.pdf

Uploaded 2026-04-24T11:48:28 (39.3 KB)

22F-H2222035-REL Decision – 968715.pdf

Uploaded 2026-01-23T17:45:27 (33.0 KB)

22F-H2222035-REL Decision – 969556.pdf

Uploaded 2026-01-23T17:45:30 (48.5 KB)

22F-H2222035-REL Decision – 979812.pdf

Uploaded 2026-01-23T17:45:33 (72.2 KB)

22F-H2222035-REL Decision – 989050.pdf

Uploaded 2026-01-23T17:45:36 (39.3 KB)

This summary addresses the hearing proceedings, key facts, main legal points, and final administrative outcome of the matter involving Petitioners Stephen and Elizabeth Tosh versus Respondent Cimmarron Superstition HOA, identified as Case No. 22F-H2222035-REL, heard in the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The hearing in this matter was scheduled for June 24, 2022. The Petitioners, Stephen and Elizabeth Tosh, failed to appear at the scheduled hearing. Christopher Hanlon, Esq., appeared on behalf of the Respondent Cimmarron Superstition HOA.

During the proceeding, Mr. Hanlon informed the Administrative Law Judge (ALJ), Velva Moses-Thompson, that he had learned the previous night that his key witness had tested positive for COVID and could not physically attend. Although Mr. Hanlon suggested arguing his pending motion to dismiss, the ALJ waited approximately 15 minutes, allowing a grace period, as Petitioners were representing themselves in this specific OAH matter. The Petitioners did not contact the OAH to request a delay, appear in person, or file a request to appear telephonically.

Main Legal Issues and Rationale

The central legal point supporting the decision was the allocation of the burden of proof. Pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, the burden of proof rested solely upon the Petitioners.

By failing to appear at the hearing, the Petitioners did not present any evidence to support their claims. Consequently, the ALJ concluded that Petitioners failed to meet the required burden of proof.

Outcome and Final Decision

Based on the Petitioners' failure to appear and subsequent failure to meet the burden of proof, the Administrative Law Judge issued a Decision ordering that the petition is dismissed.

This Order was issued on June 24, 2022. The decision was declared binding on the parties unless a rehearing was granted pursuant to A.R.S. § 32-2199.04, requiring a request for rehearing to be filed with the Commissioner of the Department of Real Estate within 30 days.

The Petitioners subsequently filed a "Notice of action (appeal)" on July 21, 2022. However, the OAH determined on August 2, 2022, that these documents would not be considered because no further action could be taken on the matter by the Office of Administrative Hearings.

Questions

Question

Who is responsible for proving the claims in an HOA dispute hearing?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.

Alj Quote

The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Question

What happens if I fail to attend my scheduled administrative hearing?

Short Answer

The petition will likely be dismissed because you failed to meet the burden of proof.

Detailed Answer

Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.

Alj Quote

By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.

Legal Basis

Failure to Prosecute / Default

Topic Tags

  • attendance
  • procedural requirements
  • dismissal

Question

Is there a grace period if I am late to my hearing?

Short Answer

The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.

Detailed Answer

In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.

Alj Quote

Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.

Legal Basis

Procedural Discretion

Topic Tags

  • attendance
  • procedural requirements

Question

What is the deadline for requesting a rehearing after a decision is issued?

Short Answer

You must file a request for rehearing with the Commissioner within 30 days of service of the order.

Detailed Answer

If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • appeals
  • rehearing
  • deadlines

Question

Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?

Short Answer

No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.

Detailed Answer

Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.

Alj Quote

The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.

Legal Basis

Jurisdiction

Topic Tags

  • appeals
  • jurisdiction
  • procedural requirements

Question

Is the Administrative Law Judge's order automatically binding?

Short Answer

Yes, the order is binding on all parties unless a rehearing is officially granted.

Detailed Answer

The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • legal standards
  • enforcement

Case

Docket No
22F-H2222035-REL
Case Title
Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date
2022-06-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving the claims in an HOA dispute hearing?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.

Alj Quote

The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Question

What happens if I fail to attend my scheduled administrative hearing?

Short Answer

The petition will likely be dismissed because you failed to meet the burden of proof.

Detailed Answer

Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.

Alj Quote

By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.

Legal Basis

Failure to Prosecute / Default

Topic Tags

  • attendance
  • procedural requirements
  • dismissal

Question

Is there a grace period if I am late to my hearing?

Short Answer

The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.

Detailed Answer

In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.

Alj Quote

Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.

Legal Basis

Procedural Discretion

Topic Tags

  • attendance
  • procedural requirements

Question

What is the deadline for requesting a rehearing after a decision is issued?

Short Answer

You must file a request for rehearing with the Commissioner within 30 days of service of the order.

Detailed Answer

If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • appeals
  • rehearing
  • deadlines

Question

Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?

Short Answer

No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.

Detailed Answer

Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.

Alj Quote

The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.

Legal Basis

Jurisdiction

Topic Tags

  • appeals
  • jurisdiction
  • procedural requirements

Question

Is the Administrative Law Judge's order automatically binding?

Short Answer

Yes, the order is binding on all parties unless a rehearing is officially granted.

Detailed Answer

The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • legal standards
  • enforcement

Case

Docket No
22F-H2222035-REL
Case Title
Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date
2022-06-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Stephen Tosh (petitioner)
  • Elizabeth Tosh (petitioner)

Respondent Side

  • Christopher Hanlon (HOA attorney)
    Childers Hanlon & Hudson, PLC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • c. serrano (staff)
    Transmitted documents
  • Miranda Alvarez (legal secretary)
    Transmitted Decision